Prisons: Education and Training

Lord Quirk: asked Her Majesty's Government:
	What changes in the role of prison officers are envisaged in the Green Paper Reducing Re-offending Through Skills and Employment.

Baroness Scotland of Asthal: My Lords, the Green Paper envisages an augmented role for prison officers in reinforcing the learning programmes in which an individual offender is engaged, and encouraging and supporting learning activity. Staff beyond those employed directly in delivering offender learning can play a critical role in the development of an environment in which learning is taken seriously, working side by side with an increasingly skilled and qualified teaching and learning workforce.

Lord Quirk: My Lords, I am grateful to the Minister for that helpful reply. Would she not agree with the recent report Wings of Learning from the Centre for Crime and Justice Studies at King's College London, which demonstrates conclusively that many prison officers would like to be more involved in delivering the rehabilitation that education and training provide, and that they dislike being seen as operating only at the less pleasant end of prison life? I am sure that we would all agree that relations throughout the Prison Service would be improved if prison officers and inmates, and prison officers and educationalists, worked better together.

Baroness Scotland of Asthal: My Lords, I absolutely agree with the sentiment expressed by the noble Lord, Lord Quirk. Prison officers have demonstrated their total commitment to this endeavour. The Prison Officers' Association has been forthright in its support for the report's conclusions. We also welcome the report. It makes an interesting and important contribution to the debate.

Baroness Sharples: My Lords, how many writers in residence are now in prisons?

Baroness Scotland of Asthal: My Lords, I do not know the precise figure. The noble Baroness, Lady Sharples, will know of the contribution that has been made to literacy and learning, and the enhancement of poetry and other matters which have been very useful. I will ensure that the noble Baroness has that information.

Lord Taylor of Blackburn: My Lords, does my noble friend not agree that the best system is a tripartite partnership between the prison officers, the local authority and private companies that are doing this work as well? That gives continuity for people coming out of prison and going on to further education.

Baroness Scotland of Asthal: My Lords, I agree with my noble friend that partnership is important. The Green Paper emphasises the important role that can be played by the business sector, working together with the learning sector and prison officers. It makes it clear that there is a role for everyone in strengthening the quality and effectiveness of training so that people are really employable.

Baroness Howe of Idlicote: My Lords, is it still the policy in some prisons to pay more for attending work sessions than educational skills classes? If that is so, what is the Government's policy on it?

Baroness Scotland of Asthal: My Lords, I have made it absolutely clear that learning is of real importance, not least because it is the gateway out of offending behaviour. The acquisition of skills makes a direct impact on employability, which has a direct impact on resettlement and reducing reoffending. We are making that an important part of our new plans to change the template that we have had.

Baroness Linklater of Butterstone: My Lords, do the Government have any plans to increase the development and learning skills of prison officers, given the inadequate training base they have? In particular, is the Minister aware of the foundation degree course being developed at Leeds prison? It includes a module on how prison officers can develop prisoner learning, and thus leads to learning officers on the wing. Does the Minister support such an initiative?

Baroness Scotland of Asthal: My Lords, we have supported all the initiatives in relation to the enhancement of prison officer learning. Indeed, the noble Baroness may be familiar with the efforts that have been made by the Prison Officers' Association and other unions to emphasise that the lifelong learning approach, which has been advocated by many, is the most appropriate. Prison officers will get a greater degree of fulfilment if they can continue to learn and can enhance the learning experience of prisoners. That is what we have learnt from the research and is the information that we are getting from elsewhere. It is an important contribution to the way forward.

Lord Judd: My Lords, does my noble friend agree that while the battle to change the culture in prisons from warehousing to an emphasis on rehabilitation is not yet totally won, one of the most encouraging dimensions of our Prison Service at the moment is the quality and commitment of much of the leadership and many of the staff, who see their role in precisely this context of rehabilitation? Rehabilitation not only matters for the prisoner, but makes extremely good economic sense for the nation, rather than seeing people return to prison to be kept at public expense.

Baroness Scotland of Asthal: My Lords, I agree with that. The Prison Officers' Association has recently secured funding from the union learning fund to open eight learning centres across England and to fund a peripatetic learning manager in Wales. The Prison Service has supported the development of the learning centres, much of the effort of which has been directed at the delivery of improved skills for life. At Nottingham learning centre, the Prison Service has supported the union's efforts in raising awareness of skills for life; every new entrant prison officer there has taken the national test for literacy and numeracy. It is important to all of us, and I very much welcome the change in attitude of, and the approach taken by, the current leadership.

Baroness Gardner of Parkes: My Lords, I know that the Minister is aware of the National Grid Transco scheme and of how successful it is. Are prison officers involved in the selection of candidates for that scheme? How they are selected?

Baroness Scotland of Asthal: My Lords, I know of the National Grid Transco scheme. The noble Baroness will also know about the corporate alliance that I launched in November. It encourages other companies to come forward to become involved in similar schemes. The involvement of prison officers in that scheme is essential because they have to work together with probation and other officers to identify the people who may be amenable to attending those schemes. The private sector working together with the voluntary sector and the public sector has enabled us to do that which we have not been able to achieve before, to the betterment of communities, but also to the advancement of offenders who wish to change.

Lord Ramsbotham: My Lords, one of the problems for prison officers is that very often they do not have time to go on the courses that they need in order to become teachers. Very often career planning for individual prison officers is not done to select those who are suitable to become trainers. Can the Minister say whether the identification of talent among prison officers is in the plans for the future?

Baroness Scotland of Asthal: It is, my Lords. The Prison Service continues to work towards embedding the Skills for Life agenda throughout the service. The staff are encouraged to use Prison Officers' Association or Her Majesty's Prison Service learning centres or a local provider to address developmental needs. Staff wishing to undertake the national vocational qualification in custodial care must complete the national test in literacy. We are continuing to enhance the professional development of officers right the way through because we see it as a fundamental way of changing the system.

Information Commissioner

Lord Tyler: asked Her Majesty's Government:
	How many applications for investigation by the Information Commissioner remained outstanding on 31 December 2005.

Baroness Ashton of Upholland: My Lords, the Information Commissioner is an independent body created by statute. He has responsibilities for handling complaints made to him under the Freedom of Information Act 2000 and the Data Protection Act 1998. The number of Freedom of Information Act complaints outstanding on 31 December 2005 was 1,325. The number of Data Protection Act complaints outstanding on the same date was 2,477.

Lord Tyler: My Lords, I am grateful to the Minister. However, is she aware how disappointed—indeed, disillusioned—those of us who campaigned long and hard for freedom of information legislation are by the lack of ability to deliver? Is she surprised or dismayed that it is taking so long for the Information Commissioner to examine complaints of unwanted secrecy? For example, I submitted a complaint in April 2005 when I was still an MP. I received no response until November 2005, when the commissioner told me:
	"We will start on your complaint as soon as we can".
	Does the Minister recognise that such a lack of urgency and resources is undermining the whole system? Freedom of information is, at the moment, a sham. Can the Minister confirm a report in Private Eye that membership of the freedom of information users group is secret?

Baroness Ashton of Upholland: My Lords, I shall seek to answer the noble Lord's questions. On his final point, I am putting together a freedom of information users group, but we have not yet invited anybody to participate. I have yet to finalise the list with my noble and learned friend. When I do so, people will be invited; there is no truth in the Private Eye story.
	Regarding the question of urgency, anyone looking at how the Freedom of Information Act 2000 was brought in—when we sought to be transparent in dealing with all of these issues—would know that, working closely with the Information Commissioner, we anticipated that there would be a surge of requests, as indeed happened. We have resourced him to the tune of £5 million, and my noble and learned friend has made it perfectly clear that on resourcing issues the Information Commissioner is invited to come to us as urgently as he can so that we may address them. I believe freedom of information is critical; I, too, campaigned for it and I am delighted that we did it.

Lord Lester of Herne Hill: My Lords, is the Minister aware that I, too, have sought to make use of the Freedom of Information Act 2000? For more than three years, I have been trying to get the answer to a simple question: what was the first date that the Government sought legal advice about the legality of the invasion of Iraq? I won before the Parliamentary Commissioner for Administration, who decided that there had been maladministration. The Government would not reply.
	I have been trying to get to the Information Commissioner, but I am in the coils of bureaucracy. The Foreign Office has, I think on four occasions, asked for further time. I am nowhere near the Information Commissioner. If that is true of someone with my privileges, can one imagine what it is like for the ordinary citizen? I know it is not the Minister's direct responsibility, but can she look at the unnecessary bureaucracy now surrounding government departments before one even reaches the Information Commissioner?

Baroness Ashton of Upholland: My Lords, I have some responsibility in that area and I am deeply aware of the requests made by the noble Lord, Lord Lester. He would not expect me to comment on his individual request. Mr Richard Thomas is available in Wilmslow to all those who seek him. I suggest that the noble Lord writes to him directly on that issue and, if he feels he does not receive satisfaction, I shall be more than happy to pick that up myself with the commissioner.

Baroness Wilcox: My Lords, I declare an interest to the Minister in that I was chairman of the National Consumer Council when we fought hard and long to get a freedom of information Act. When we went to America, we realised just how much money and time that would involve. We sympathise with the Government in trying to deliver this. People will be feeling deeply disappointed and their hopes will be dashed in trying to get answers to their questions.
	According to a press release issued by the Information Commissioner, he has been in discussion with the Minister at the DCA on increased funding to improve the service that he provides to the public. We on the Conservative Benches know well how much it will cost to provide the sort of service in a freedom of information Act that the Americans have provided. It is deeply expensive. Have any increases in funding been agreed?

Baroness Ashton of Upholland: My Lords, as I indicated, the funding available to the Information Commissioner is some £5 million. I visited him in Wilmslow not long ago to discuss resources. My noble and learned friend meets him regularly and resources are always on the agenda. The Information Commissioner would agree that he has been invited to put forward proposals if he feels that he needs resources to do his job more efficiently. He has been looking carefully at that but believes that once the surge—if I may describe it as such— is over, his office will be able to settle down and deal with the issues effectively and efficiently.

Lord Foulkes of Cumnock: My Lords, can the Minister give an estimate of what percentage of the requests under the Freedom of Information Act come from newspapers and their so-called investigative reporters?

Baroness Ashton of Upholland: My Lords, I sought to discover whether the Information Commissioner had a breakdown of complainants because there is an issue—which I think my noble friend is referring to—concerning the use of the Freedom of Information Act by different people. I believe very firmly that the purpose of the Act, above all, is to allow local people in communities to obtain information in order to enhance the ability of government to be better at what they do. It is critical that local people should be able to do that and should understand better how government works, and the Government should respond to that. That is ultimately what the regime is for. We also suffer from a number of frivolous requests. I am sure all noble Lords read the article by my noble and learned friend where he referred to the request, for example, for the number of windows at the Department for Education and Skills. Each department could probably come up with a number of frivolous requests which require time to answer. We need to look carefully at ensuring that the Act is used properly, especially, as the noble Baroness said, for those of us who campaigned for so long and so hard to get this very important legislation on the statute book.

Lord Forsyth of Drumlean: My Lords—

Baroness Amos: My Lords, we are on 15 minutes.

Driver and Vehicle Licensing Agency: Opticians

Lord Harrison: asked Her Majesty's Government:
	How the Driver and Vehicle Licensing Agency selects and monitors the commercial opticians who conduct field tests to assess drivers' peripheral vision for the renewal of driving licences.

Lord Davies of Oldham: My Lords, qualified opticians and optometrists must apply for registration declaring their ability to undertake the specific visual field test required for driver licensing purposes. Each visual field test result is monitored by DVLA's medical group to ensure it satisfies the registration requirements. Those who are no longer able to conduct tests to DVLA requirements will cease to be used.

Lord Harrison: My Lords, given the anxieties of those about to take the field test, because it might involve them losing their driving licence, is it not unacceptable that they should be required to take these tests in public view—in the noisy, brightly lit public rooms of opticians—instead of in the privacy of the back room of the optometrist? Moreover, is it not unacceptable that they should be required to put on their glasses—glasses which may well be bifocals—and then distort the actual measure of the test when the test is one of peripherality and not of acuity?

Lord Davies of Oldham: My Lords, on the latter point, the spectacles that the person undergoing the test is expected to wear are those that they would be required to wear when they are driving. In fact, if you are required to wear spectacles and have passed the test wearing them, it is an offence to drive without them. On my noble friend's first point, the conditions in which the test is taken will vary between different opticians and optometrists. However, provision is made for more than one test in circumstances where failure occurs, and the conditions in which opticians and optometrists carry out the tests are moderated. I accept what my noble friend has indicated—that a test may be conducted in less than satisfactory circumstances. However, there are rights of appeal against test failure. I can assure the House that the tests are taken seriously and are generally conducted under proper conditions.

Lord Renton: My Lords, four years ago—when I was only 93—having twice fallen asleep when driving, I voluntarily surrendered my driving licence. I have never driven since. Should not the Driver and Vehicle Licensing Agency be alerted to the possibility of there being various ways in which people should no longer go on driving?

Lord Davies of Oldham: My Lords, the noble Lord is a shining example to us all and to the rest of the country. It is a citizen's duty to notify the DVLA if their health conditions have changed in such respects as to adversely affect their driving. Their GP will tell them that this is so, and they are then under an obligation to act. I am sure that what the noble Lord is indicating is that it is a civic duty to drive safely and to ensure that one is fit to drive.

Lord Harrison: My Lords, further to his earlier reply on the question of bifocals, does the Minister understand that someone can drive a car perfectly well wearing bifocals because of the vision to drive along the road, but that their peripheral vision will be distorted if half of what they see is obscured by wearing the lower half of bifocals, which are clearly intended for short-sightedness and not for long-sightedness?

Lord Davies of Oldham: My Lords, I do not wear glasses very often and am singularly ill qualified to respond to this question. However, I emphasise again that the DVLA is concerned that the test should be carried out under proper and fair conditions. As I said, all test applicants who wear glasses in order to drive would be expected to wear them for a test that is measuring their ability to drive safely.

Lord Hanningfield: My Lords, as the Minister will know, we have just completed the passage through this House of the Road Safety Bill. In those debates the Government revealed that they are to call in all existing driving licences and replace them with a card that looks remarkably similar to the ID card. The Minister was not able to clarify whether it was going to be the ID card; the point was unclear when we completed the Bill's passage. However, if people lose their driving licence as a result of their eyesight or for other reasons, will they also lose their ID card?

Lord Davies of Oldham: My Lords, that question rather pre-empts debate both on a Bill that is before this House and on the Road Safety Bill, which also has not yet completed all its passages between the two Houses. The noble Lord will in due course, as I said, receive the satisfaction that he requires on this point.

Lord Berkeley: My Lords, perhaps I can help the noble Lord, Lord Harrison, by asking my noble friend the Minister whether he does not think that the bottom half of bifocal glasses is quite useful for looking at the speedometer.

Lord Davies of Oldham: My Lords, I am well aware of the benefits of bifocal glasses; I have heard of their many reputed advantages for all who wear them. However, I emphasise that when driving a car, one needs both peripheral vision—which is examined by one aspect of the test—and the ability to read closely the speedometer and the car's other instruments. In so far as bifocals aid in that dual responsibility, they are to be worn with enthusiasm.

Viscount Simon: My Lords, before a learner driver can take the driving test, they have to read a number plate from a required distance. This, of course, can be done by someone with tunnel vision. Would it not be a good idea if all drivers, prior to taking the driving test, had their peripheral vision tested by an optometrist or someone similar?

Lord Davies of Oldham: My Lords, such a requirement for all driving licence applicants would greatly increase the demands on the service. As my noble friend indicates, a car number plate—with characters 79 millimetres high and 57 millimetres wide—must be read satisfactorily from a distance of 20.5 metres. That test has stood us in good terms over a very long time—although Imperial metrics were used previously. We do not find that eyesight problems are a major contributor to road accidents.

Anti-social Behaviour: Respect Action Plan

Lord Northbourne: asked Her Majesty's Government:
	What assessment they have made of the capacity, and the adequacy of resources, of local authorities to implement the proposals contained in the Respect Action Plan launched on 10 January.

Baroness Scotland of Asthal: My Lords, the Respect Action Plan sets out the Government's detailed plans for delivering the respect agenda, and how it is to be funded. The action plan builds on existing activities to tackle anti-social behaviour that affects local communities. The Government believe that local authorities have adequate resources and capacity to deliver this in conjunction with other local agencies and with support from the respect task force.

Lord Northbourne: My Lords, I am most grateful to the noble Baroness for that Answer, although it was rather imprecise. Does she accept that I strongly approve of many of the projects that are envisaged in the action plan, not least those for revitalising the nation's youth service and for supporting parents? The Government are talking about £80 million. That sounds an awful lot of money, but, spread over 10 million children, it is only £8 per child. I do not think that we will get a tremendous lot of extra services for that sort of money.
	I suggest that the Government, as any good business would, should employ someone to sit down and find out what each local authority, one by one, needs in additional services to implement the plan, estimate what that will cost and then think about where the money will come from. Surely that would be the very least that we would expect in a decently run business; surely the very least that we should consider is offering sufficient respect to parents and children who, as a result of this launch, are now expecting those services?

Baroness Scotland of Asthal: My Lords, I acknowledge the noble Lord's strong support for issues that are contained in the plan and which he has advocated for many years. However, the £80 million to which he rightly referred is not the only money that will be available. Some £52 million of that amount goes to new funding to start a national programme, and £28 million goes to the intensive family support. That is on top of some very significant additional funding that we have already made available on this agenda. There is £38 billion for the Sustainable Communities Plan, £81.7 billion for local government, the £1.2 billion that we invested in March to improve the quality of housing stock, £1.05 billion for the Neighbourhood Renewal Fund, and so it goes on. There is huge investment in this agenda, and we are trying to bring it all together, take advantage of the synergies and get the outcomes that we aspire to for children, their families and the community.

Baroness Walmsley: My Lords, given that the children most at risk of offending are often identified early and are partly addressed by the Sure Start programme, why will the Government not follow through when those children go to school? Is the Minister aware that to get extra resources to help those most needy children, they have to go through the statementing process? That can take up to two and a half years. It has hurdles that are too high and, if children are successful in getting through in the end, they do not get adequate resources to meet their needs anyway. Schools that have dozens of such children, in our most deprived communities, are struggling, and no wonder.

Baroness Scotland of Asthal: My Lords, the noble Baroness will be well aware of the work that we are doing in relation to children's trusts, linking the development of the work between the DfES, the Home Office, the Department of Health and the Office of the Deputy Prime Minister. We are aiming to draw the whole issue together so that we get the added value for the children most in need. I have had the privilege of going to look at some of the new intervention programmes. I went on 10 January to see the intensive supervision surveillance programme in Hammersmith, together with the youth inclusion support panel. I saw for myself the splendid work that is being done and the benefits that are being delivered to children and their families. I applaud the people involved because they are doing work that should have been done a long time ago.

Baroness Morris of Bolton: My Lords, I hope that the Minister will agree that governments do not always have all the answers. Indeed, much of the best work being done on parenting, families and children is through faith-based charities and voluntary organisations. Therefore, I hope that as part of the Government's respect agenda, they will support and help such organisations.

Baroness Scotland of Asthal: My Lords, the noble Baroness is absolutely right: the whole of the respect agenda is predicated on partnership right across the piece, so that everybody has a role to play. Again, it is better supported by the alliances that I have mentioned. The noble Baroness will know that in November I launched the faith and voluntary sector alliance. We acknowledge that the Government need all the help they can get to make sure that we are doing all that we can as a community to meet the needs of the people about whom we care.

The Lord Bishop of Liverpool: My Lords, in recognising the importance of partnerships in the community, is the noble Baroness aware of the small number of schools in areas of multiple deprivation that run parenting programmes? Are there any plans to invest in schools in urban areas so that they can develop those programmes to great effect in the respect agenda?

Baroness Scotland of Asthal: My Lords, there is an opportunity for that to happen. I mentioned the £28 million that we shall give for intensive family support projects. The right reverend Prelate is right: through the moneys being made available to the DfES, we already have many programmes run by schools in conjunction with voluntary sector agencies to help parents through the difficult period from the time children first go to school to the time they go to university. That is being done voluntarily. All we can do to support that initiative is important. We intend to be holistic in the way in which we respond.

Parliament (Participation of Members of the House of Commons) Bill [HL]

Lord Baker of Dorking: My Lords, I beg to introduce a Bill to provide for the Speaker of the House of Commons to have power to determine the eligibility of Members of the House of Commons to participate in certain legislative proceedings of that House. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Baker of Dorking.)
	On Question, Bill read a first time, and ordered to be printed.

Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL]

Lord Lester of Herne Hill: My Lords, I beg to introduce a Bill to place under the authority of Parliament executive powers exercisable by Ministers of the Crown by virtue of the Royal prerogative; to make provision relating to the appointment and conduct of, and general duties relating to, civil servants and special advisers; to make provision about nationality requirements for persons employed or holding office in a civil capacity under the Crown; to establish a procedure for the making of certain public appointments; and to make provision about access to the Parliamentary Commissioner for Administration; and for connected purposes. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Lester of Herne Hill.)
	On Question, Bill read a first time, and ordered to be printed.

Terrorism Bill

Report received.
	Clause 1 [Encouragement of terrorism]:
	[Amendment No. 1 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 2:
	Page 1, line 5, after "by" insert "some or all of the"

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3. These are both relatively minor amendments and I hope that we shall not have to spend too long debating them. However, before explaining the detail of the amendments, I should like to say a little about the Government's general approach with regard to Clauses 1 and 2.
	I hope that all noble Lords will have read the amendments and will be aware of the broad package that we now propose. Our broad aim is now to insert "intent" and "recklessness" into Clause 2. As part of this package we also propose to revise wording in Clauses 1, 3 and 28. I am confident that this package will satisfy the concerns expressed, in particular by my noble friends Lord Eatwell and Lady Warwick but echoed by the noble Baroness, Lady Williams, and a number of other noble Lords. Before we go into the detail of these issues, it is right that I should explain these relatively minor amendments. I hope that we can end this part of the debate quickly.
	Amendment No. 2 clarifies that a statement will fall under Clause 1 if it is likely to encourage some or all members of its audience to commit, prepare for or instigate acts of terrorism or convention offences. This amendment is intended to provide greater clarity in the Bill, but does not change the way in which we have all in practice understood this clause.
	Amendment No. 3 would remove the redundant expression. I realise that we have discussed this provision previously and I argued that it should be kept. On reflection, however, it became clear that the wording in question does not make any beneficial difference to the offence and can be taken out in the interests of brevity and clarity. I am grateful to the noble Lord, Lord Thomas of Gresford, for bringing this provision to my attention at an earlier stage.
	Amendment No. 13 is a technical, consequential amendment, necessitated by government Amendment No. 4. It would not change the meaning of the offence in any substantial way. I therefore urge your Lordships to support these government amendments, crafted so beautifully as they are. I beg to move.

Lord Kingsland: My Lords, I thank the Minister for her introduction, which has helped the Bill to be looked at dispassionately and objectively at Report in the light of the Government's general framework. All the issues which the Minister raised will be considered in detail, line by line, during the afternoon. For those reasons, I do not propose to say anything further at this stage.

Lord Cameron of Lochbroom: My Lords, will the Minister explain a problem I have with the amendment so far as it introduces the words "some or all of" in respect of the members of the public? Subsection (3) of Clause 1 uses the phrase,
	"statements that are likely to be understood by members of the public".
	Subsection (3)(b) is worded,
	"a statement from which those members of the public".
	Are "those members of the public" "some or all of the members of the public" or is some different concept in mind? I raise the matter because the phrase "some or all of"—in respect of persons, for instance—appears throughout Clause 2 in relation to what would otherwise be members of the public. Will the Minister explain why the words "some or all of the" are not added to Clause 1(3)?

Baroness Carnegy of Lour: My Lords, does "some members of the public" rule out one member of the public?

Baroness Scotland of Asthal: My Lords, the matter in the amendment to which the noble and learned Lord, Lord Cameron of Lochbroom, referred, and the question of the noble Baroness, are taken up by Amendment No. 68A, proposed by the noble Lord, Lord Elton, who is not in his place. I am loath to go into the detail, but suffice it say that subsection (3) is automatically limited by subsection (1). I hope that helps the noble and learned Lord.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 3:
	Page 1, line 11, leave out "on his behalf"
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 4:
	Page 1, line 12, leave out from "he" to end of line 14 and insert "publishes it or causes it to be published, he—
	(i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or
	(ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences."

Baroness Scotland of Asthal: My Lords, these amendments are more comprehensive in nature. In moving the amendment, I shall speak also to Amendments Nos. 5, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, which stand in my name and concern Clauses 1, 2, 3 and 28.
	The key changes that these amendments bring forward relate to the opening clauses of the Bill, in particular the new offence of disseminating terrorist publications. This new offence encompasses all those who disseminate extremist material. We have made it clear throughout the passage of this Bill that the offence is intended to target two types of publications: those that may encourage terrorism, and those that may be of use to terrorists, such as training manuals.
	We should not ignore the contributory role that radical texts and extremist pamphlets have in radicalisation. They serve to propagate and reinforce the extremist and damaging philosophies which attempt to justify and explain the motivations of terrorists. We should not underestimate the role that such literature can have in radicalising vulnerable and susceptible young people, particularly changing Muslims from law-abiding members of the community to potential terrorists.
	Equally, the ability of terrorists to exchange information on techniques and tactics in order to enhance their ability to prepare and commit terrorist acts needs to be disrupted as effectively as possible. We have seen that through the data we have had and discussed during Committee and our debates earlier. While under Section 58 of the Terrorism Act 2000 it is already an offence to create or possess information that is likely to be of use to a person committing or preparing an act of terrorism, it is not currently an offence to disseminate that material. We want to change that situation.
	For understandable reasons, many noble Lords on all sides of the House have spoken at length about the potential risk that they believed this offence posed to legitimate activities. While paying due attention to these concerns, we should not allow them to deflect us from the real issues which we need to confront, and which this clause will allow the security and law enforcement agencies to tackle more effectively. There is a real evil that needs to be addressed and this clause will allow us to address it.
	At the same time as wanting to prevent extremism in our communities and to provide our law enforcement agencies with the most effective tools to disrupt and combat terrorism, the Government have always been conscious that we need to steer a careful line between these intentions and the freedoms we cherish. Much of the concern expressed in Committee focused on whether the Government have placed that line in the right place. There was not a difference between us as to the need to do it; it was just where that line should be drawn, in particular with reference to the concerns of those in the academic circles and within the UK library community.
	It has never been our intention, as noble Lords know, to curb the activities of legitimate booksellers, librarians or academics engaged in the study of terrorism, such as those at the University of St Andrews which was rightly mentioned by the noble Baroness, Lady Carnegy of Lour. As I explained in Committee, we did not believe that the Bill as it stood would have had this effect. We maintain that belief. However, the Government are a listening government, as I hope we have demonstrated on many occasions. I have, in particular, considered deeply the comments of my noble friends Lord Eatwell and Lady Warwick, and those of the noble Baroness, Lady Williams of Crosby, the noble Lord, Lord Goodhart, and noble Lords on all Benches, who have expressed anxiety about the issue. Their contributions have led me to reflect on how we could best meet these proper concerns.
	Accordingly, I have tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, which mirror the same tests that exist in Clause 1. I have also tabled amendments to modify the wording of Clause 1. I do not believe that the amendments change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as that in Clause 1, to the extent that that is possible in a different offence. We listened very carefully to the arguments about the synergy between the two and the importance of having consistency, and we have tried to reflect that in the way in which the amendments have been drafted.
	The prosecution under the amended Clause 2 will have to prove that a person disseminating a terrorist publication either intended to encourage terrorism or to provide information of use to terrorists, or that the person was reckless to the possibility that someone would be encouraged to commit acts of terrorism or would find the material useful in the commission of acts of terrorism. Those changes are proposed in Amendments Nos. 19 and 20. The changes to Clause 1 to which I have referred are in Amendment No. 4.
	The inclusion of intent and recklessness in Clause 2 will, I am confident, be welcomed by my noble friends Lord Eatwell and Lady Warwick of Undercliffe as well, I hope, by both opposition parties. My noble friends and noble Lords in opposition parties can be reassured that whatever concerns they had about the potential impact of the Bill have now been addressed—and, I hope, addressed properly.
	I am pleased to see the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, in their places, representing as they do a spectrum of political positions in this House. They have all tabled amendments—Amendments Nos. 17 and 18—which would have had the same effect as Amendments Nos. 19 and 20. Of course, in view of the fact that the government amendments achieve the same effect but do so in the context of a package of proposed amendments that will ensure that the Bill remains technically effective, I invite and urge noble Lords, especially those I have mentioned, not to press Amendments Nos. 17 and 18 when we come to them and to support the government Amendments Nos. 19 and 20, with related Amendment No. 4, which changes Clause 1.
	Before I turn to the amendments in this group that have been tabled by noble Lords opposite, I should explain at a little greater length the other amendments that I have tabled. Many relate to the major changes to Clause 2, which I will now explain. Others are of a more technical nature. I am sure that many noble Lords are anxious to express their support for the amendments, so I shall comment on the relatively minor amendments as briefly as possible.
	Amendments Nos. 28 and 29 are technical amendments. Amendment No. 28 seeks to make a particular expression clearer in the context of the wording and structure of the offence as a whole, which we shall seek to introduce. Amendment No. 29 seeks to change an internal reference in the light of a new package of amendments. Neither of those amendments effects any substantial change to the meaning of the offence. Amendment No. 30 inserts into Clause 2 a provision mirroring Clause 1(5)(b); it makes it clear that the offence can be committed whether or not anyone is in fact encouraged to commit acts of terrorism or finds information useful in committing acts of terrorism. That is because we are convinced that when prosecuting someone under this clause, the prosecution should have to demonstrate only the state of mind of the person making the statement, not the audience hearing it. We believe that the provision is entirely reasonable; it also ensures that the offence in Clause 2 can operate on the same principles as the offence in Clause 1, as far as possible.
	Amendments Nos. 15, 16, 31, 36 and 40 give effect to changes that I signalled in Committee. Amendment No. 15 generalises the defences in Clause 1 that the person publishing the statement did not endorse it and that it was clear in all the circumstances that he did not, so that it is available to everyone, not just those providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, it is our belief that there is no reason why a defence should be available to those who commit the offence intentionally.
	Amendment No. 16 is a technical provision that clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. Amendment No. 36 plays a role similar to that of Amendment No. 15, but in Clause 2. It generalises the defence in Clause 2(9)—that is, that the person disseminating the publication did not endorse those parts that constituted an encouragement of terrorism and that it was clear in all the circumstances that he did not. Therefore, the defence is available to everyone, not just to those providing a service electronically.
	Amendment No. 40 removes the defence that was available in relation to the dissemination of material of use to terrorists, because that defence provided that a person had a defence if he did not intend the matter in the publication to be of use to terrorists. That is now unnecessary, as intention is part of the offence. In any case, such material, unless it also fell into the category of material encouraging terrorism, would not be capable of being endorsed. This amendment also restricts the defence relating to material that encourages terrorism to those who commit the offence recklessly.
	Clause 31 removes the defence in Clause 2(8), which was originally intended to provide protection for libraries but is now redundant in the light of the generalised defence in Clause 2(9) and the insertion of the notions of intent and recklessness into Clause 2. The final government amendments arising from the changes to Clause 2 are Amendments Nos. 44 and 80. These are purely technical in nature and ensure that internal references will still be correct. For all these reasons, I urge your Lordships to support Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80. I am confident that noble Lords have held all those numbers firmly in their minds.
	I turn now to the amendments tabled by members of your Lordships' House who sit opposite or on the Cross Benches. Before I address those that have been tabled with regard to Clause 2, I should like to make some comment on Amendment No. 5. This seeks to remove the notion of recklessness from Clause 1. In a similar vein, Amendment No. 4A seeks to remove the notion of recklessness from government Amendment No. 4. I will try to explain our view as briefly as I can, because I believe that we all understand one another's positions on this point.
	I am convinced that it should be an offence to publish a statement that is likely to encourage terrorism, knowing that members of the public to whom it is published could indeed be encouraged to commit acts of terrorism. I do not believe that it should be possible for a terrorist preacher, for example, to argue that they did not actually intend to encourage terrorism when it was perfectly clear that his or her comments would do so. If the person knew that their comments were likely to encourage terrorism but made them anyway, it should be possible to prosecute. Otherwise we will allow a climate to be created in which terrorism is increasingly regarded as acceptable; we do not believe that that would be an acceptable position.
	I therefore urge noble Lords who have tabled these amendments to rethink their position and not to move them. It would be difficult to tell citizens of this country, among others, that those who have suffered through terrorism—whose friends or relatives have been killed or injured—believe that it is acceptable to make statements that are likely to encourage terrorism and to know that that will be the effect of the statements. I am pleased to say that the government Benches do not hold that view and would not concur with it. Civil liberties are extremely important to us all, but so is our security and safety. So it is necessary for us to do all that we can to avert those who would foment terrorism in this way.
	I turn to the opposition amendments regarding Clause 2. Although we will debate them separately in due course, Amendment No. 17 is relevant to these issues. I must confess that I am left a little confused, as the noble Lord, Lord Goodhart, who has put his name to Amendment No. 17, has also put his name to Amendments Nos. 19A, 20A and 20B, together with the name of the noble Baroness, Lady Williams. I am confused because it seems that those amendments have a very different effect from that of Amendment No. 17. The noble Lord may well have his reasons for contradicting these contradictory amendments. I certainly hope that that will become clearer in due course, not least if he abandons the contradictions, which do not concur with the Government's interpretation. I have indicated why Amendment No. 17 should be withdrawn. Government Amendments Nos. 19 and 20 perform the same job.
	I will now concentrate on Amendments Nos. 19A, 20A and 20B, which all seek to remove the word "recklessness" from the Government's amendments that would insert the notions of intent and recklessness into Clause 2. I have already spoken about recklessness a little with regard to Clause 1, so I will try to be brief now. The issue is simple. We do not believe that people should be allowed to encourage terrorism knowingly. I cannot believe that the noble Lords who have tabled these amendments think that people should be allowed to encourage terrorism knowingly. Ultimately, this will be a matter for each of your Lordships to consider.
	I am pleased with, and would like to acknowledge, the support of Her Majesty's loyal Opposition for the concept of subjective recklessness. I hope that this means that they feel able to answer no to this question. I hope that only a small minority of Members of this House believe that there has been so little regard for civil liberties that people should be allowed to encourage terrorism knowingly. As long as the Government and Her Majesty's loyal Opposition, together with as many of those Cross-Benchers and others who agree, are committed to maintaining essential civil liberties and not allowing people to encourage terrorism knowingly, I am sure that we will all retain our faith in the process.
	I now turn to Amendments Nos. 19A, 20A and 20B. I am finishing very soon. We would strongly invite the noble Lords, particularly the noble Lord, Lord Goodhart, not to pursue these amendments. This would mean supporting the inclusion of intent and recklessness in Clause 2 and in practice supporting government Amendments Nos. 19 and 20. I hope that that will be the position.
	In conclusion, I would invite the noble Lords to welcome and support the government amendments. As I have explained, the amendments do what the House wanted us to do, namely to insert intent and recklessness into Clause 2. In this respect they do the same as Amendment No. 17, which we will be debating shortly. They do so in a context of a package of amendments to revise Clause 1 as well as Clause 2. Given that the Government's amendments will achieve much the same effect as Amendment No. 17, I urge your Lordships to support the Government's Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, but I also call on the noble Lords opposite not to move any amendment that contradicts any of those. I beg to move.

Lord Brabazon of Tara: My Lords, I should point out that if Amendment No. 4 is agreed to, I will not be able to call Amendments Nos. 5, 6 and 7.

Lord Kingsland: My Lords, perhaps I may raise a procedural point with the noble Baroness. The last version of the grouping that I saw certainly included Amendment No. 20 in the line of amendments further down the page starting with Amendment No. 17. That is because our Amendment No. 17 is about intent and the noble Baroness's Amendment No. 20 is also about intent. As I understand it, the grouping that we are discussing now—I hesitate to refer to "intent" again, but I will—is intended to deal only with recklessness. The matter of intent is to be delayed until later because quite distinct issues arise with the two and, in my submission, it would be unfortunate if the two debates were intermingled. I may have had the wrong pair of glasses on when I looked at the previous list—that is perfectly possible—but I distinctly recall Amendments Nos. 17 and 20 being linked. Indeed, that was an early request on behalf of the Opposition, the Liberal Democrats and the noble and learned Lord, Lord Lloyd of Berwick.
	I make this point with due hesitation and respect but I hope that the noble Baroness will understand that, when we come to the grouping beginning with Amendment No. 17, it will be necessary for us to compare the merits of Amendments Nos. 17 and 20. Therefore we would like to reserve any observations that we make on intention until we reach that point.

Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says and perhaps I can be frank with him in relation to our position. The list was changing as I took my place on the Front Bench to answer Question 1. I understand that negotiations continued while I was on the Front Bench. Those negotiations concluded with the list that I now have, conjoined in the new way, and therefore I responded as I have just done.
	My understanding is that the amendments to which I have just spoken were bracketed in a way that was agreed. As I was still on the Front Bench answering Question 4, I had nothing to indicate that what I was given was not in fact the position. But, of course, it is for the House to decide whether to degroup any set of amendments in the way that the noble Lord suggests, even on the Floor, and therefore I will be in the House's hands. I have done what was indicated to me as being what noble Lords opposite were minded to do. I am but a servant of the House.

Lord Kingsland: My Lords, I indicate to the noble Baroness that no one doubted for one moment that that was a fact. I may well have misled myself. If I have—it frequently occurs—perhaps I can invoke logic rather than my own memory and suggest to your Lordships that much the best place to debate intent is in the grouping beginning with Amendment No. 17. Therefore, the issue for this line of amendments should be limited solely to recklessness. I see that the noble and learned Lord, Lord Lloyd, has something to add and so I shall sit down.

Lord Lloyd of Berwick: My Lords, I support what the noble Lord, Lord Kingsland, has said. It seems to me that Amendments Nos. 17 and 20 go very closely together and should be debated in a separate group.

Lord Goodhart: moved, as an amendment to Amendment No. 4, Amendment No. 4A:
	Line 7, leave out sub-paragraph (ii).

Lord Goodhart: My Lords, the purpose of this amendment is to remove the recklessness test from the grounds on which someone can be prosecuted under Clauses 1 and 2. I certainly welcome the Government's acceptance of the principle that we should apply an intent test in Clause 2 as well as in Clause 1. My welcome would have been warmer if the conversion had not been so late. These amendments were not released until Friday morning, which gave a wholly inadequate time to consider them and consult either internally within the parties or between the various interested parties—namely, ourselves, the Conservatives, libraries, universities, Internet service providers and others.
	However, my main concern about Amendment No. 4 is that the Government are diluting the requirement for intent by adding a test for recklessness. I am aware that I have put my name down to another amendment—Amendment No. 17—as the noble Baroness has pointed out, which would apply the recklessness test. I did so at a time when the Government were, so far as I knew, refusing to apply the intent test. I was aware that the Conservative Party then wanted to have an intent and a recklessness test, as I believe it still does. Therefore, I thought that it was better to back a Conservative amendment that was likely to win rather than to leave the status quo.
	Having looked at these government amendments, I am left with very considerable doubts about what is actually meant by "recklessness" in the Bill or, perhaps more important, what the Government think it means. In Committee, we on these Benches made it clear that we wanted a simple test of intent with no recklessness alternative, whether objective or subjective. The Minister raised the case of a firebrand preaching terrorism and said that such people should not be allowed to raise a defence of recklessness. It seems to me that that is irrelevant, because a defendant cannot argue successfully that he did not intend the obvious meaning of the words that he used. He cannot get out of it by saying, "Oh, I said it but I didn't mean it". It seems to me that a preacher in such a case who tries to suggest that he did not mean what he said would be convicted on the basis of obvious intent.
	I am particularly concerned by the interaction of the recklessness test with the special defences that the Government want to retain in Clauses 1 and 2. I understand from what the noble Baroness has said—although this had not been explained to me before—that this test would be available to someone who was reckless but who had no intent. So, in spite of being reckless, he would be able to get away with it if he could satisfy the special defences.
	Our view is that the recklessness test is the worst of both worlds. In practice, I believe that it would be impossible to get a conviction unless intent is proved, but the recklessness test is alarming enough to lead universities, libraries and the media to withhold legitimate material and to fail to undertake work that would be in the public interest.
	I have a number of questions to put to the Minister about the effect of the Bill as the Government see it in certain circumstances. First, a newsagent sells a magazine which contains an article that expressly encourages terrorism, but the newsagent is not aware of the contents of the magazine. It seems to me that the recklessness test is not satisfied, because an essential element of recklessness must be the defendant's knowledge that either publishing or disseminating material may encourage some recipients to acts of terrorism. The special defence, therefore, is irrelevant. Does the Minister agree? If so, is it also clear that Internet service providers, who are not monitoring material transmitted by them, do not commit an offence unless notice is served on them under Clause 3?
	Secondly, the BBC carries an interview with a senior member of Hamas who actively supports terrorism in Israel. The interviewer asks forceful questions, but allows the Hamas member to state his case. The programme carries a response from the Israeli Government. The BBC must be aware that some viewers may find Hamas's arguments persuasive and be encouraged to give it assistance. Therefore, it seems that the initial recklessness test would be satisfied and that the BBC would have to rely on the defence that it did not endorse the views of Hamas and made it clear that it did not do so. Does the Minister agree with that?
	Thirdly, a newspaper carries an article that is very sympathetic to the political objectives of militants in Kashmir. That article carries emotive reports of Indian violence in Kashmir but does not mention violence committed by the militants. Intent to encourage terrorism cannot be proved. However, it seems that the article could well satisfy the recklessness test because it could indirectly encourage terrorism. The author of the article may raise a special defence, but would fail because obviously the article that he had written represented his views. The newspaper might succeed if it published a disclaimer alongside the article saying that the article did not represent its views. Does the Minister agree and, if so, does that not create a serious anomaly? It shows that two people saying the same thing could be treated differently under the Act not because of what they say but because of what they think. In effect, that is thought crime.
	The fourth and final example is this: a student asks a university library for a chemistry text book which could assist someone wanting to make home-made explosives. The librarian knows about the contents of the book, but knows nothing about the student except that he is a student. He proceeds to lend the book. That, too, seems to satisfy the recklessness test. In that case, no special defence is available under the Bill when it incorporates the new government amendments. The librarian seems to be guilty of an offence under Clause 2 even if the student has in fact no connection with terrorism. It seems, therefore, that, in order to avoid prosecution, the library must have some kind of blacklist of books—which would include, no doubt, atlases—which cannot be lent to anyone without positive vetting because otherwise the librarian is at risk of prosecution. Does the Minister agree?
	The combination of the very broad definition of terrorism and the inclusion of the recklessness test—even if it is subjective—means that the Bill will make illegal those statements that most of us believe are the legitimate exercise of free speech or at best will force those who are disseminating statements to prove that those statements do not represent their own views. The chilling effect of that is considerable. This is an entirely different situation from recklessness in driving offences. There is no right whatever to drive at excess speed. There is no balancing issue as there is here with questions of freedom of speech. By contrast, most of us believe that it is the legitimate exercise of the right to freedom of speech to support the political objectives of a militant group that is fighting a brutal and oppressive regime. The exercise of that right will, however, be seriously restricted under the Bill.
	Many things can be said with no intention of supporting terrorism in the United Kingdom or elsewhere but which could increase support for objectives of terrorists where the objectives are in themselves legitimate. To support independence for Chechnya is in itself as legitimate as to support independence for Scotland. The encouragement of legitimate objectives may encourage at the same time some people to adopt unlawful means of achieving those objects especially where legitimate means are forbidden to them. Most people would understand that, but it means that anyone who publicly supports independence for Chechnya is being reckless, because anything which increases support for the independence of Chechnya may well encourage unknown people to move from peaceful protest to violence.
	To make that an offence is an unjustified restriction on freedom of speech. It is not necessary or proportionate, as was made clear by the United Nations High Commissioner for Human Rights, Louise Arbour, in the letters that were sent to the Government on 28 November but not disclosed by the Government until 9 January this year. It is inconsistent with Articles 5 and 12 of the Council of Europe's Convention on the Prevention of Terrorism, which provides that incitement to commit a terrorist crime must be an offence, but the offence must be drafted with respect to the rights to freedom of expression and association. It is also inconsistent with the report on the Bill by our own Joint Committee on Human Rights, which states that the provision on the dissemination of terrorist publications is unlikely to be compatible with the right to freedom of speech in the absence of a requirement that such dissemination amounted to incitement to violence being both intended and likely to act as an incitement. To make recklessness a sufficient basis for the offence is an unjustified restriction of freedom of expression and unnecessary in defence of our national security. I beg to move.

Lord Kingsland: My Lords, this is a rare occasion on which we are going to disagree with the noble Lord, Lord Goodhart, on recklessness. The Minister will recall that the most contentious issue concerning the definition of recklessness was the distinction between subjective and objective recklessness. That matter has now, happily, been resolved. It is generally viewed that the application of subjective recklessness to matters of publication will, in practice, apply only rarely. Almost invariably, a person intends to publish a statement.
	Almost invariably in the criminal law of our country, recklessness is a component part of mens rea. We therefore see, in those circumstances, no good reason for excluding subjective recklessness in this case.

Lord Plant of Highfield: My Lords, as someone who participated in this discussion on Second Reading, and was extremely unhappy with the idea of objective recklessness—against which I hope I mounted a coherent case—I am pleased to welcome the Government's change of mind in favour of subjective recklessness. With the words in the amendment and, in a Pepper v Hart context, the clear statements that the Minister has made about the nature of recklessness embodied in the Bill—that it is a subjective thing—I am now happy to support the Government, largely for the reasons that the noble Lord, Lord Kingsland, mentioned.

Lord Rees-Mogg: My Lords, I am not a lawyer, and am not clear about the difference between subjective and objective recklessness; or, indeed, about the difference between the two amendments from either side. I may well be, however, the only Member of this House who would clearly have been at risk of this clause had this Bill been passed at the time.
	In the 1980s, I pursued the trade of an antiquarian bookseller. Amongst other material, we specialised in 20th-century history, particularly that of the Soviet Union. I remember selling a number of books, including the early works of Lenin, which clearly acted—or might have acted—as incitements to commit acts of terrorism. Indeed, Lenin can be regarded as the godfather of terrorism as a political tactic.
	In particular, I remember that we had a copy of a book which we dealt in more than once: Moya Zhizn, the autobiography of Trotsky, first published in Berlin in 1931. I had a customer for this particular copy who will be somewhat remembered: Mr Robert Maxwell. I sold him a copy of Trotsky's autobiography, I now think, looking back on it, recklessly. That is to say that Mr Maxwell was widely rumoured to be connected with more than one foreign intelligence agency and was not a man, in general, of good or reliable reputation. So on the one hand I should have had concern about my customer and, on the other, Moya Zhizn is written, as one might expect, in Russian. I cannot read Russian, and I have no knowledge of what inflaming material Trotsky might have put into Mr Maxwell's mind had he read it. Nor did I know whether Mr Maxwell read Russian, although I think it quite likely that he did. What defence would I have had in those circumstances if I had been charged with recklessly selling something that was potentially an encouragement to terrorism without taking whatever safeguards—and I do not know what safeguards they could be—to satisfy myself that there was no more direct risk? Would that have been subjective recklessness or objective recklessness?

Lord Judd: My Lords, having participated in Committee when we discussed these issues, I join my noble friend Lord Plant—we are both members of the Joint Committee on Human Rights—in saying how glad I am that the Minister fulfilled her undertaking to listen to what was said in those discussions in Committee and how warmly I welcome the inclusion of the concept of intent. Having said that, I hope my noble friend will forgive me if I make two observations because the context in which we discuss what is before us is as important on Report as it is at any other stage of the Bill.
	We are debating the Bill at a time when what is regarded as terrorism in the context of the Bill is recognised as contentious. The Government have appointed the noble Lord, Lord Carlile, to produce a report on what is terrorism and what the definition of terrorism should be. Therefore, we would do well in our deliberations to realise that we are moving forward with what should be done by the law about terrorism when we also recognise that there is a debate about what terrorism may, or may not, be. The noble Lord, Lord Goodhart, illustrated the point in what he said about Chechnya. To put it in layman's language, the issue remains unresolved for many people and what may be seen as terrorism by one person may, in a particular context of oppression, be seen as freedom fighting or a liberation movement by somebody else. That is true not just in history; it is true today as well.
	I wish to make another observation: while I underline how much I welcome the Government's move on intent, unlike my noble friend Lord Plant I still have a certain uneasiness on recklessness, about which I hope my noble friend will be able to reassure me. I am a layman; I am not a lawyer. Therefore, I am one of the people who must understand what is and what is not law. I am not one of the people who, with all the insight of lawyers' expertise, are making the law. I would have thought that common sense would tell us that sometimes somebody will do something in good faith that subsequently, when he is confronted by all the implications of what he has done, he might, in retrospect, agree was reckless, but was not consciously reckless at the time at which he did it. Therefore, I am uneasy about the concept of recklessness being used without any qualification whatever about the mental attitude, the state of mind and the state of knowledge of the person who committed the offence at the time that it was committed. I hope my noble friend will say something about this and that she may indicate some way in which this point could be made clearer for the layman and the potential culprit.

Baroness Williams of Crosby: My Lords, I follow what has just been said by the noble Lords, Lord Judd and Lord Rees-Mogg, because I think all noble Lords welcome the Government's move on Clause 2 and want to help the Government in any way we can in picking their way through the extremely difficult conflict between freedom of expression and the need to protect ourselves sensibly against terrorism. However, may I echo what the noble Lord, Lord Judd, said about recklessness? I will add another thought to the reasons why what that would catch is still, I am afraid, somewhat unclear.
	In a letter sent on 3 January to a number of people who expressed concern about this Bill, particularly among the universities, the Minister of State at the Home Office, Hazel Blears, said:
	"As with obscene publications, libraries must act with due care in handling such publications and restricting access to them as they deem proper, in order that proper academic research is possible"—
	and I emphasise this next phrase—
	"whilst not allowing impressionable people to see such publications".
	With great respect to the Minister of State, who is able and competent, it is almost impossible to see how to interpret that under the general header of recklessness. Is it "reckless" if a library or university teacher behaves without, as in Mrs Blears' expression, "due care"? In almost any university in the land, by definition there are almost bound to be "impressionable people". At their best, that is exactly what students are.
	How, then, could a conscientious university teacher or librarian meet, at one and the same time, the rather more narrow explanation of recklessness that the Minister has so helpfully given us here and the implications of Hazel Blears's letter? With the best will in the world—and I wish the Government well in getting this Bill as right as we can—I simply cannot see how one can meet both requirements at the same time. They do not seem fully compatible.
	Although this is an extremely important issue, I will not detain the House long. However, I will go back for a moment to what is called the chilling effect. In some cases, the concept of recklessness can be defined in terms of negligence—a failure to take the action that one might in order to meet this Bill's requirements. Once into that, questions are raised about whether, for example, the librarian or academic teacher should attempt to screen his or her students, and we get into the area of whether he or she should have to operate self-censorship in order to avoid any possibility of being found guilty of recklessness. With great respect to the defences laid out, they still leave open the very troubling possibility that a number of people from these two professional groups would find themselves being accused of recklessness and having to defend themselves. Frankly, that is completely unjust to those professions and, even if they are eventually found to be innocent, it is bound to leave a whiff of criminality behind.
	The Liberal Democrats have the greatest willingness to behave responsibly because we have all at one time or another, either personally or generally, encountered the terrible consequences of terrorism. We will try if we can, during Report, to make the whole issue of recklessness as precise as possible. In that I echo the questions of my noble friend Lord Goodhart and the noble Lords, Lord Rees-Mogg and Lord Judd.
	I conclude by saying that, given the letter from the Minister of State at the Home Office, any help that the Minister can give us, whether via amendments or explanation to the House on how she would narrow and limit the concept of recklessness, would be extremely helpful. There is also the importance of being able to respond in good faith to the letter that my noble friend quoted from the United Nations High Commissioner for Human Rights, which indeed throws some doubt on whether, even with the amendments, we have met the requirements in the European convention or in the Council of Europe's covenant.

Lord Eatwell: My Lords, I ask the Minister to take due note of the points made by the noble Baroness, Lady Williams. I hope that my noble friend can assure the House that the sentence she quoted from the letter of my right honourable friend Hazel Blears is a mistake because it is indeed chilling. It would require libraries and universities to interrogate the motives of all their readers and all their students—an absolutely impossible task. In many cases, of course, publications would not have the defence under Clause 2(9) of endorsing views. The example given of the chemistry text book is one where that defence would not be available.
	I endorse what the noble Baroness, Lady Williams, said with respect to the letter from the Minister of State at the Home Office. I hope my noble friend on the Front Bench can assure the House that it is a mistake.

Baroness Carnegy of Lour: My Lords, I, too, hope that in her reply the Minister will be able to give some indication of where she feels this concept begins and ends. As at earlier stages of the Bill, I have in mind a library at St Andrews University where much of the material used is issued by terrorists. Its objective is the study of terrorism and the way terrorists behave—and you can only study that if you have examples of how terrorists behave.
	If the remark in the Minister of State's letter is not a mistake—if it is intentional—is she saying that impressionable students should have no access to such material? If so, that really would be a limitation on the liberty of people. If the Minister could give a definition of where this concept begins and ends it would be very helpful.
	I was not particularly disturbed by the speech from the Opposition Front-Bencher—I thought it was rather loose talk about freedom—but when the noble Baroness, Lady Williams, gave a specific example, it shook me. It clearly shook the noble Lord, Lord Eatwell, who has, since our proceedings began, been thinking a great deal about this on behalf of the British Library.
	I look forward to as comforting and clarifying a definition as we can possibly have.

Viscount Bledisloe: My Lords, having listened to this very interesting debate, it seems to me that there are two strands which need to be sewn together. I am sure the noble Lord, Lord Kingsland, is right when he says that, in reality, there will be very few prosecutions under the "reckless" heading. Equally, it seems absolutely clear that many perfectly innocent and worthy people—and, indeed, the noble Lord, Lord Rees-Mogg, as well—will be led into situations where they have to take, or feel they may have to take, enormous precautions or be subjected to enormous worry in perfectly innocent activities. In those circumstances, if the clause is going to be used extremely seldom, either it needs to go or, at the very least, the Government need to give categorical assurances that it will be used only against people who, in their view, are real terrorist criminals but who might be sheltering behind the slight difference between "intent" and "recklessness"; and that it will not be used against people who cannot take, or do not have time to take, or, as the noble Lord, Lord Judd, said, do not realise that the circumstances require, precautions. This would alleviate the obvious and considerable worry that there is. It cannot be right for people to have that worry and to take all that trouble for a heading which, as the noble Lord, Lord Kingsland, said, will be used very seldom.

Baroness Warwick of Undercliffe: My Lords, my primary concern is the definition of "intent" in Clause 2. I will save my fire until we debate Amendment No. 17, but contributions from other noble Lords have prompted me to ask the Minister how "recklessness" is intended to be interpreted in Amendment No. 20, which does not relate to a direct communication between individuals. The offence in Clause 2 is the distribution of publications where they may fall into the hands of people who might use them for terrorist purposes. It is the distance between the action of the librarian and the reaction of the potential recipient that now causes me concern. How, if you have an unrestricted group of potential recipients, can you know whether some may have terrorist leanings? Perhaps I may ask my noble friend, in sharing some of the concerns expressed, to say something about the meaning of "recklessness" in that context.

Lord Dearing: My Lords, I have two questions. First, I am interested in Clause 2(1)(d), which has to do with providing a service to others, which, in a library, of course, includes access to a computer. I would be astonished if, on the world-wide web, there is not a good deal of information and material that would be useful to a terrorist or would encourage terrorism. Would the librarian be in any way vulnerable for allowing students unrestricted access to a computer?
	Secondly, and more specifically, there is a book by Bruce Lawrence, Messages to the World: The Statements of Osama Bin Laden, priced £10.99, newly translated from the Arabic original, and annotated with a critical introduction by Islamic scholar Bruce Lawrence, placing the statements in their religious, historical and political context. Now, let us suppose that a student, on the recommendation of a lecturer, obtained a copy through the library, and committed a terrorist act. If, on investigating, police found a copy of that book in the student's bedroom, would the university, its librarian or its lecturer be at any risk? I ask this question because I think it is so important that these people, who, like me, are not lawyers, and have a job to do, know precisely where they stand.

Lord Butler of Brockwell: My Lords, perhaps I may follow that by generalising the case described by the noble Lord, Lord Rees-Mogg. In his case, he had the advantage of knowing who the customer for the autobiography of Trotsky was, which may have made the culpability of the noble Lord greater, as he recognised. The job of a bookseller, generally, is to sell as many books as possible and to make books available to the public. It really is not the task of a bookseller to have to distinguish or discriminate between customers. Yet, the definition of recklessness here appears to make it an offence for the bookseller not to discriminate in that way. How otherwise could the bookseller be sure that customers would not include someone who would either be moved to terrorism or use the book for the purposes of terrorism? I think that, in those circumstances, if I were a bookseller, without the advantage of knowing the identity of my customer, I would be concerned about that.
	Similarly, the task of a librarian is to make the books in the library available to students or others who want to use them. It should not be, as I think this amendment implies, the task or duty of librarians to discriminate between borrowers in order to satisfy themselves that those borrowers do not include people who might be moved to terrorism or use the book for the purposes of terrorism. My concern about these amendments is that, as other noble Lords have said, unless greater clarity can be achieved, they will make people in the perfectly honourable and normal businesses of librarianship or bookselling uncertain about whether they are at risk of breaking the law.

The Lord Bishop of Chester: My Lords, the debate this afternoon has surely demonstrated that the concept of recklessness is unclear. I listened very carefully to the rather rapid-fire speech with which the Minister introduced the debate. As I recall, she said that we would all agree that those who knew that they were likely to encourage terrorism should be caught by the provisions of the Bill. As I understand it, the noble Baroness was trying to explain what was meant by the concept of recklessness. If that is what she means by recklessness, why not put those words into the Bill rather than the much vaguer word "recklessness"?
	This is a very sensitive Bill; it could be interpreted by the courts in very sensitive ways. If the Minister means by "recklessness" that people knew they were likely to encourage terrorism, why not state it in those terms, which are much clearer, more precise and easier for the courts to interpret?

Lord Thomas of Gresford: My Lords, the debate about recklessness was in these terms originally. "Objective recklessness" is when a person does not give his mind to what is likely to happen, although a reasonable person would realise that some harm would follow from his act. If a person does something which is harmful without giving his mind to the consequences, and a reasonable person would have realised it would cause harm, that is "objective recklessness". That was the decision in Caldwell, which the Judicial Committee of this House set aside a year or two ago.
	"Subjective recklessness" is where a person realises the consequence of his act yet goes on to carry out that act, although he may not intend that those consequences should follow. To put it into this context—and it is a very difficult concept that lawyers have had to struggle with over many years—let us suppose that there were a manual for making a bomb. If a person were to pass that manual to a person who he considered could potentially act upon it and realises that he may be encouraging him to make a bomb, then he would, in one sense, be subjectively reckless, but I am quite sure that he would be held guilty of intending that to happen if he knew that the person had it in mind to act as a terrorist. But let us suppose that it was a book on chemistry. A bookseller, librarian or university lecturer knows that of course it is possible to use a textbook on chemistry to construct a bomb. He has no intention that the person should construct a bomb and certainly does not care whether he constructs a bomb. He obviously would care were that to follow.
	The clause sets out a criminal offence, punishable by seven years' imprisonment. It would cover a person who did not actually commit a terrorist act but said something or passed on a terrorist publication such as a book or a pamphlet. Is it right that a person should be guilty of a criminal offence carrying seven years' imprisonment if he does not intend the consequences that may follow? "Recklessness" is a difficult concept, and I cannot see that it is right, as my noble friend has said, for a person to be subjected to a lengthy sentence of imprisonment when he did not intend the consequences that he foresees.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for his valiant attempt to differentiate between "subjective" and "objective" recklessness. I will not say that I absolutely agree with that definition but I think it is within the right ball park.
	I agree with the explanation of the noble Lord, Lord Kingsland, in relation to recklessness. Quite often "intent" which has a subjective recklessness element is very similar to "intent" simpliciter. In making that more accessible to those Members of your Lordships' House who may need it to be, perhaps I may say simply to the noble Lord, Lord Rees-Mogg, that, notwithstanding the indication of the noble Viscount, Lord Bledisloe, about the way in which he may be treated, I think that he would be not guilty.
	I do not think that the circumstances to which the noble Lord, Lord Goodhart, referred cause anxiety. The noble Lord, Lord Thomas of Gresford, is right. The difference between "subjective" and "objective" is this. "Objective" is what a reasonable person would do or expect. A "subjective" test is what this particular person thought or believed at the time, not what any other sane, rational person would have thought. It is what this person thought that makes it subjective.
	I confess to a certain degree of naivety. I had hoped that these amendments would give a great deal of pleasure to this House. I thought that I would be met with "hurrahs". Perhaps I may reassure the noble Baroness, Lady Williams, about the letter written by my right honourable friend Hazel Blears. That letter was sent before we tabled the amendments which your Lordships now discuss. We have provided for intent with recklessness and the generalised defence of non-endorsement. The noble Baroness and noble Lords will know that we have been giving anxious and proper consideration to our response to the concerns about Clauses 1 and 2 properly expressed in the House.

Baroness Williams of Crosby: My Lords, I thank the noble Baroness for giving way. I fully accept what she says. However, the date of the right honourable lady's letter was 3 January. We were aware that the Government had been tabling amendments which were known within the departments, although not to the Opposition, before Christmas. So it was not unreasonable for me to assume that the letter from the right honourable lady still held good dated, as it was, 3 January.

Baroness Scotland of Asthal: My Lords, there is no criticism of the noble Baroness for raising the matter: it is right that she should do so. I share this with the noble Baroness. I had not had sight of that letter, did not know of its content, and would not otherwise have been aware that that was a concern operating in the minds of the noble Baroness and others. It is right, therefore, that we have an opportunity to address that. Work was ongoing as to the nature of amendments, and when and if they should be laid, up until the time they were laid. I assure the House that we laid those amendments as swiftly as we were able bearing in mind the contemplation.
	Everything I said in Committee relating to the need to allow proper academic debate, proper learning, in our institutions stands. I repeat the assurances I gave to the noble Baroness, Lady Carnegy of Lour, that the department of St Andrews which specialises in teaching the nature of terrorism and its effects would not be improperly inhibited from so doing, and I repeat my assurances in relation to the libraries and the booksellers—although not verbatim because I am sure noble Lords do not wish to continue this debate for the six hours it would take me to go through all that I said before.
	So all that lays good. These amendments took on board the mischief which noble Lords had identified; the need to have proper debate maintained in our universities, which are of such high quality; the issues raised by my noble friend Lord Desai; and the issues also raised on our Benches by the noble Lord, Lord Parekh, and a number of others. I am very grateful for the endorsement given today by my noble friends Lord Plant and Lord Rea, because noble Lords know that they shared the anxieties of this House. We responded to their anxiety. I mentioned my noble friends Lord Eatwell and Lady Warwick too in relation to those issues. Their concerns galvanised us to think how better we could respond. I make it clear that we do not suggest that the clauses that were previously in the Bill did not deliver what noble Lords wanted—we believe that they did—but noble Lords demanded greater clarity, to put the matter beyond dispute. We believe that the amendments we have now brought forward do that. That is the reassurance that noble Lords wanted and, frankly, that is the reassurance which we were minded to give because we believe that those who have genuinely expressed those concerns are at one with us in our intent. Nobody in this House is subjectively reckless about what we are trying to do. I hope that I have reassured my noble friends and other noble Lords, including the noble Lords, Lord Dearing and Lord Butler, that we have done that which we needed to do to make the matter clear.
	My noble friend Lord Judd gave examples, as did the noble Lord, Lord Goodhart. In none of those examples, for the reasons that he identified, did I think that the individuals would be at risk. For the sake of completeness, it may be helpful if I deal with just a few of those examples. The noble Lord, Lord Goodhart, asked about a newsagent who was not aware of the content of a magazine. In that case, he is not being reckless so no offence is committed. What about Internet service providers who do not monitor what goes on? That was part of the question of the noble Lord, Lord Dearing, as well as of that of the noble Lord, Lord Goodhart. They too are not committing an offence. We discussed on the previous occasion what they can do to remove improper material from their websites in a way that is just. The BBC would be able to rely on the non-endorsement defence. A librarian who gives out a chemistry textbook would not be guilty of an offence because a chemistry textbook would not be a terrorist publication under Clause 2(5)(b). For a publication to be a terrorist publication, it has to be material of use to terrorists. It must be clear that the material that was of use to terrorists was included in the publication wholly or mainly for the purpose of being so useful. That is not the case with chemistry textbooks.
	I understand your Lordships' anxieties. It is right and proper that they should be explored, but it is also right and proper to say that they have no basis in fact. We have therefore come to a conclusion which I hope will give us a sense of comfort, because those who said that we needed to make sure that the legislation was clear were right. We have now responded to them. I hope that noble Lords will therefore feel able to accept that the position adopted by Her Majesty's Loyal Opposition—that is, supporting these amendments—is the correct and proper position.

Lord Goodhart: My Lords, I am grateful to all the noble Lords who have expressed concern about the recklessness test, and particularly to those who have held senior positions in the universities. The noble Baroness started by saying that my examples do not cause anxiety and went on to discuss them. They continue to cause me anxiety.
	In particular, there is something seriously wrong in this in a situation where the BBC broadcast a valuable programme which may have considerable effect in keeping people informed of what is going on in the world, but which may incidentally lead to a smaller number of those people who hear it becoming more active in terrorism. The BBC may in those circumstances, prima facie, be found guilty of an offence. To escape conviction, it has to come to court and at present has the burden of proof on it to satisfy the court that it did not endorse this. No doubt the BBC would not have much difficulty with this, but there are other less well known broadcasters which might find themselves in a different position. In connection with the Hazel Blears letter which showed a great lack of understanding of what the whole of our higher education system is about, it would be plainly desirable for the noble Baroness to say that it was a mistake and does not apply.
	The position is that intent is simple but recklessness is a test that is difficult and uncertain. It is unlikely to secure convictions because it is difficult. I remain firmly of the opinion that it will have—indeed already is having, to some extent—an effect which is chilling on freedom of expression. In those circumstances I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 4A) shall be agreed to?
	Their Lordships divided: Contents, 86; Not-Contents, 190.

Resolved in the negative, and amendment disagreed to accordingly.
	On Question, Amendment No. 4 agreed to.
	[Amendments Nos. 5 to 7 not moved.]

Lord Lloyd of Berwick: moved Amendment No. 8:
	Page 1, line 15, leave out subsection (3).

Lord Lloyd of Berwick: My Lords, the purpose of the amendment is to leave out Clause 1(3). That subsection creates the offence of the glorification of terrorism.
	It is helpful to look back on how we got to where we are in relation to this provision. Subsection (3) was originally a separate offence—then Clause 2. It applied to anybody who glorified acts of terrorism, whether past, present or future. Events that occurred more than 20 years ago were exempt, unless they were put on a list to be compiled by the Secretary of State. The origin of that unusual offence was a single sentence in the Labour Party manifesto. However, the manifesto did not explain how you could create a criminal offence out of something so broad, so vague and so nebulous as the idea of glorification without—this is the important point—infringing freedom of speech.
	Encouragement of terrorism, whether direct or indirect, was covered—as it now is—by a separate clause, Clause 1. The purpose of that clause, as explained in the Explanatory Notes, was to enable us to comply with Article 5 of the Council of Europe Convention on the Prevention of Terrorism.
	There was no definition of indirect encouragement and there was no reference in the original Clause 1 to glorification. Clause 2 attracted a maximum penalty of five years for the glorification offence, and Clause 1, concerning the encouragement offence, a maximum of seven years.
	The glorification offence attracted a good deal of what one could call ridicule as soon as it was published. It quickly became apparent that it would be unworkable in practice, and so glorification as a separate offence was then abandoned. Instead, it was tacked on at the end of Clause 1, dealing with the encouragement offence, where we now find it in subsection (3). My argument will be that subsection (3) has all its original vices as a separate offence in that it is much too broad and much too vague, but there is now an additional objection: in its new context it is very difficult to understand at all and almost impossible, one would imagine, for a judge to explain to a jury. So my suggestion is that subsection (3), which was attached to Clause 1 only at a very late stage, should now be detached and confined to what I believe is called the recycle bin, but I hope that it will not be recycled in some other form.
	I now turn to views expressed during Second Reading. Almost everyone who dealt with the glorification issue condemned it as being incomprehensible or unworkable or both. I shall never forget the scathing attack—I think that that is the right adjective—advanced by the noble and learned Lord, Lord Morris of Aberavon. Many others spoke to the same effect and I listed them all during the Committee proceedings. Some noble Lords referred to the report of the noble Lord, Lord Carlile, in support of glorification, and I shall, if I may, come back to that a little later. But he did not touch on glorification in his Second Reading speech. Otherwise, there was nothing in favour of glorification, and the Minister did not deal with it at all in her reply.
	Between Second Reading and Committee occurred a very important event—the publication by the Joint Committee on Human Rights of its third report of 28 November. The committee formed the view that glorification is too vague to form the basis of a criminal offence, and I will trespass on your Lordships' patience to read paragraph 27:
	"The first source of legal uncertainty in the definition of the offence of encouragement of terrorism in clause 1 of the Bill is the inclusion of 'glorification of terrorism' within the encouragement offence. 'Glorification' is defined in the Bill to include 'any form of praise or celebration'. The legal certainty concern is that terms such as glorification, praise and celebration are too vague to form part of a criminal offence which can be committed by speaking".
	There could be nothing clearer than that. The committee came back to the same point when it dealt with Clause 21, to which we shall come later—the new clause providing for a new basis of proscription. It said:
	"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 [of the convention] or the right to freedom of association in Article 11 . . . for the same reasons as those given above in relation to the proposed new offence of encouraging and glorifying acts of terrorism".
	That is exactly what Members of this House were saying in the course of the Second Reading debate.
	That is a view expressed by the Human Rights Committee, and it is a view that has been expressed by numerous other bodies. It has been expressed by Liberty and by Justice and in an excellent paper produced by the Mayor of London. I have never known a case in which the commentators have been so united and unanimous in the views that they have expressed about any clause in any Bill before your Lordships' House.
	More important than all of that is the letter written by Louise Arbour, a very distinguished Canadian judge and a member of the Canadian High Court. She is now the High Commissioner for Human Rights. The letter was written on 28 November, but for some reason it became available to us only on 9 January. No personal blame attaches to the Minister because she told us that she simply did not know of its existence until 9 January. The letter is from Louise Arbour to our ambassador. I shall read two or three paragraphs:
	"Clauses 1 and 2 are of concern because they fall short of the requirement of 'actual intent' required to prove guilt for serious criminal offences".
	Of course, that has now happily been covered by the amendments put forward at a very late stage.
	"The current formulation of clause 2 in particular, suggests that a person could be found guilty of having committed the offence of 'dissemination of terrorist publications' even if s/he had no intention of doing so".
	This is the important point for the purposes of this amendment:
	"Additionally, the scope of clauses 1 and 2 would appear questionable even in the light of the limitations provided for in Article . . . 10 of the ECHR. The draft offence contained in clause 1 fails to strike a balance between national security considerations and the fundamental right of free expression. Clause 2 fails to demonstrate proportionality between the objective of preventing terrorism and the proposed offence of criminalising the dissemination of any material which terrorists may find useful.
	"Clause 21 provides the 'grounds of proscription' of organisations which promote or encourage terrorism. This clause as currently drafted is too broad as relates to the offence of 'glorification'".
	I need not read any more.
	I now come to the views expressed by the noble Lord, Lord Carlile, to which I said I would return. I have great sympathy for him in having to deal with the question in such extreme haste. I think he would say that this is not a matter on which his particular expertise gives him any great advantage over the rest of us. Ultimately, of course, it is a matter for the courts, as we saw in the Belmarsh case.
	Perhaps I may read what he said in paragraph 23. It is right that it should be read, as he is under a self-denying ordinance not to take part in this stage of the proceedings.
	"In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context. The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible".
	If the noble Lord had been aware of the full weight of opinion in favour of the view that the clause is not compatible, he might have reached a different conclusion.
	I find it very difficult to say anything in favour of subsection (3). The Minister said that it would be useful in providing what she called "guidance" to the court as to what Parliament has in mind. That is a strange way of creating a brand new criminal offence. My own view is that subsection (3) will have to go, first, because it is unnecessary. We do not need it to meet our international obligations. Cases of provocation, encouragement, or incitement—they all mean exactly the same—are amply covered by our existing law, as is shown all too clearly by the case of Abu Hamza, which is currently before the criminal courts.
	Secondly, it will have to go because it is damaging to community relations for all the reasons given on so many occasions by the noble Lord, Lord Ahmed. We should listen very carefully to what he says. So far from adding to our safety—and I do not think it will—it may in the end prove "counter-productive"—the phrase used by the noble Lord, Lord Condon, in another context.
	Thirdly, it is quite clearly incompatible with Article 10. With respect to the noble Lord, Lord Carlile, I must say that I cannot envisage our courts holding that the glorification offence is a proportionate response to the threat—everyone accepts that there is a threat—from which we suffer. The courts will ultimately decide. When the first person is convicted under this provision, that conviction is bound to be appealed and will come before the courts. The consequence will be as I have predicted. The provision is incompatible, but Clause 1 can so easily be made compatible by simply omitting subsection (3).

Lord Carlile of Berriew: My Lords, the noble and learned Lord has put words into my mouth without my having notice of what he was about to say. Despite the power of his advocacy, my view remains as set out in the report from which he quoted. I have read all the materials, including the letter from Louise Arbour, and I want to put on the record that what the noble and learned Lord has suggested are now my thoughts are not in fact my views. I wanted to correct that assumption.

Lord Lloyd of Berwick: My Lords, I have nothing to add to what I have already said. The clause can be made compatible in the way that I have suggested by leaving out subsection (3). I hope that the House will agree to that. I beg to move.

Lord Kingsland: My Lords, Amendment No. 9 is in my name and those of my noble friend Lord Henley and the noble Lord, Lord Goodhart. As your Lordships can easily discern, the amendment would also leave out subsection (3), but would in addition include an alternative definition of the offence of indirect encouragement. I will swiftly encapsulate the history of the word glorification, which is at the root of Clause 1(3). As your Lordships will recall, together with condoning, glorification began as a self-standing offence in the Government's manifesto at the May election. By the time the Bill came along, the word "condoning" had been dropped altogether. "Glorification", instead of defining an offence, became a word explaining an offence. The new offence was that of "indirect encouragement" contained in Clause 1(1). The explanation of "indirect encouragement" is in Clause 1(3).
	We have no objection whatever to the new offence of "indirect encouragement". We support the Government in that. Our only concern is with the way that it is defined. It is not with "glorification" itself, but the way in which it is defined and is used in subsection (3). I suppose it can be said at the outset of this debate is that our objection to what the Government have done is not one of principle, but one of drafting.
	One view that has been ventilated is that the interpretation of an offence of "indirect encouragement" should simply remain with the judge, and that there should be no additional guidance for the judge in the Bill. I respectfully disagree with that, which is why we have tabled Amendment No. 9. We have provided an alternative definition to the Government's definition in subsection (3):
	"For the purposes of this section"—
	that is, Clause 1—
	"'indirect encouragement' comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it".
	In my respectful submission, that encapsulates exactly what ought to be encapsulated in the notion of an offence of "indirect encouragement".
	Why is the Government's draft inadequate? I could not have put it more eloquently than the noble and learned Lord, Lord Lloyd of Berwick. It not only offends Article 10, it also offends Article 7 of the European Convention on Human Rights. Indeed, I respectfully submit that, above all, a contravention of Article 7 is the most damaging and dangerous aspect of subsection (3). Article 7 requires certainty from the legislator. Article 7 requires that when somebody is considering an activity, it should be reasonably clear to that person before he engages in the activity that, if he does so, he will be committing a criminal offence. With great respect to the Government, I do not see how anybody contemplating the text of subsection (3) could know whether he was going to commit an offence or not. That is at the root of the problem that the Government face, and why we have moved Amendment No. 9.

Lord Morris of Aberavon: My Lords, I rise to support the noble and learned Lord, Lord Lloyd of Berwick. I am particularly grateful to him for his too kind words. This part of the clause is vague, uncertain, and unnecessary. It would make it extremely difficult in practice for a judge to be able to direct a jury. I bow to the superior wisdom of the noble and learned Lord on this.
	I am impressed by the words of the high commissioner, writing to our ambassador on 28 November. It would have been helpful if greater urgency had been shown in ensuring that mail that the ambassador received was brought to the attention of the House. It seemed to take an intolerably long time for matters that were specifically asked to be brought to our attention—albeit it was presented on Second Reading, but that matters not; certainly, it should have been at the earliest possible stage.
	The issue of "glorification" is set out in Clause 20, where there is the definition subsection:
	"'glorification' includes any form of praise or celebration, and cognate expressions are to be construed accordingly".
	In the draft Bill, it included the word "exalt", whatever that may mean. That has certainly been dropped, an improvement which I pointed out on Second Reading.
	I wrote to the Minister, and she kindly replied that she did not feel it would be appropriate for her to prepare draft directions to a jury or to place any example directions in the Library. That was because any directions would have to be related to specific cases under consideration. I have not sat as a recorder for a few years since the age of 65 when the previous Lord Chancellor declared that that was enough. He may well have been right. All recorders—presumably all judges—are supplied with a book of draft directions which are in general and are applied almost every day by judges across the land. The argument that directions would have to be related to specific cases under consideration does not hold water. The book is available and is used daily when we sit in judgment.
	Let me return to a specific case. I shall not delay the House for more than a moment. At Second Reading, I reminded the House of what the Minister in the other place had said. She had commented that the kind of expression she would feel comfortable with was if someone had said, "What a wonderful thing happened on 7 July", with the intention that it alone would persuade people to go out and commit acts of terrorism. I surmise that no English or Welsh jury would convict on that kind of evidence. I may be wrong, but if that is the best the Minister in the other place can produce, it is not a particularly persuasive point. Perhaps the Minister here can produce a better example.
	I again ask that, before we conclude our debates on the Bill, draft directions on the particular case with which the Minister said she was comfortable are produced so that we can examine rationally and objectively whether it would be easy to direct a jury on this vague and uncertain clause.

Lord Goodhart: My Lords, my name is attached to all the amendments in the group and I endorse everything said by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon, and the noble Lord, Lord Kingsland. Including the glorification of terrorism in the Act is at best useless and at worst could cause serious problems.
	It is primarily useless because it seems to me to add nothing whatever. It is not a sensible definition of indirect terrorism and it is only a limited feature of that at best. There is no question that it would not have appeared in the Bill if the Prime Minister had not said last summer that we should legislate against the glorification or condoning of terrorism. Sensibly, the condoning of terrorism was left out, but the glorification of terrorism was left in. Indeed, it found its way into the Labour Party manifesto for the general election. It is entirely pointless here. The definition by the noble Lord, Lord Kingsland, is much better and simpler.
	The whole question of glorification is simply going to confuse and trouble the courts. The definition is amazingly wide. As I said in Committee, it is clear that if one is looking at past acts of terrorism within the very wide definition of terrorism in the 2000 Act, the War of American Independence is a terrorist act. When one then looks at glorification, it includes celebration, so that act of terrorism is celebrated every 4 July, on Independence Day. It is only a slight stretch of the imagination to suggest that the Chancellor of the Exchequer might be encouraging terrorism by saying that 4 July is something we ought to emulate by having a national day of our own. That is perhaps going a little further than the courts would be prepared to go, but I mention it because it illustrates the general unsuitability of using glorification of terrorism, which can in the right circumstances be a test of whether there is an indirect intention, but it is absolutely wrong to make it the sole method of encouraging terrorism. I know it is not an exhaustive method, but it is the sole method that is referred to in the Bill. That is entirely inappropriate. All these references to glorification should be removed from the Bill.

Viscount Bledisloe: My Lords, I support the proposal that subsection (3) be excluded. On balance, I also support the proposal by the noble Lord, Lord Kingsland, to substitute a different subsection (3). The noble Lord's subsection (3) is genuinely a definition clause and tells us what indirect encouragement is; on the other hand, the existing subsection (3) merely includes glorification, but leaves anything else available to be included if a court so holds. That is an important difference.
	Subsection (3) as it stands is largely unnecessary and, in so far as it is not unnecessary, it is highly undesirable. Many statements which glorify previous acts of terrorism are obviously indirect encouragement of the commission of those offences. If one goes around saying that the destruction of the World Trade Centre in New York and the bombing on the Tube were wonderful events and should be repeated as often as possible, one is glorifying them and indirectly encouraging the commission of like offences. Subsection (3) is not needed to enable a prosecutor to say to a jury, "He said, 'Aren't these people wonderful? They blew up half of America—that's the way to get to heaven'. Surely, members of the jury, that's a fairly obvious encouragement to do the same". That is why subsection (3) is largely unnecessary.
	But what subsection (3) actually states is that the statements,
	"indirectly encouraging the commission of . . . acts of terrorism . . . include every statement which glorifies".
	That means that if one finds a statement that does not encourage terrorism, none the less—by reason of subsection (3)—the judge must direct the jury that, whatever it may think about that statement, if it is a glorification it has to be incitement by indirect encouragement. That must be highly pernicious. That is why subsection (3) is, in many cases, unnecessary and is, in some important cases, positively pernicious since it requires a jury to consider something as indirect encouragement whereas, in reality and common sense, it would not decide it to be so. It is not a result which, on the whole, we should greatly encourage in our criminal courts.

The Lord Bishop of Winchester: My Lords, I am increasingly puzzled. It seems to me that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, is precisely what the House needs to accept. However, the more that I look at the amendment from the noble Lord, Lord Kingsland, it seems that it opens up precisely the can of worms which the amendment tabled by the noble and learned Lord seeks to close by removing the subsection altogether.
	The more that I look at Amendment No. 9, the more it seems likely to have just as chilling an effect on the teaching of, for instance, almost any period of British history in schools, and still more in universities. Maybe that is because I have in mind that extraordinary form of words in subsection (3),
	"whether in the past, the future, or generally".
	That goes across the whole range of history. The same would be still truer of the history of every other continent, as the noble Lord, Lord Goodhart, has just made clear. What puzzles me is that that noble Lord supports the amendment of the noble Lord, Lord Kingsland, as well as that of the noble and learned Lord, Lord Lloyd of Berwick. I even wonder whether this is why the statue of Oliver Cromwell is so nearly invisible outside your Lordships' House and the other place today.
	There is a wider point, which I will be grateful to have the opportunity to make now to your Lordships. It is, precisely, that there are parts of the world where the whole question of what terrorism is and what it is another generation later, when it is something regarded quite differently, is a much more live issue than in this country with its long history. We are, of course, legislating for this country. Yet it is important at every point in this Bill, much of which I find profoundly questionable, to remember the political, educational and legal influence of our work and its results elsewhere. That is especially so in those Commonwealth countries that significantly share our legal system and its traditions, not least in sub-Saharan Africa, where governments and legislators—and the often fragile and threatened human rights organisations—may each, in their different ways, look to and quote in aid both our existing law and the developing legislation.
	We need to be acutely and constantly aware that there are governments, in that part of the world and elsewhere, whose tendencies to oppressive behaviour are as clear today as they have been in the past. We need to ensure that, by bringing in what may be oppressive legislation ourselves, we offer neither assistance to such governments nor great discouragement to fragile human rights organisations in such countries. I look at every proposal from that standpoint, as well as from that of our own country.

Lord Ackner: My Lords, I agree that subsection (3) must clearly go, for the reasons which have been fully explained. However, I also agree with the noble Lord, Lord Kingsland, that this is no matter of principle but one of drafting. I would strongly support his proposals in Amendment No. 9, as and when we come to it.

Baroness Williams of Crosby: My Lords, I want to echo what the right reverend Prelate the Bishop of Winchester said about the extent to which British legislation becomes an instance and, indeed, a model for legislation in many other Commonwealth countries—not least, in countries which are far more threatened with tyranny than ourselves. That is highly striking, as anyone who follows the discussions of the Commonwealth Heads of Government will be well aware. Our legislation is closely copied, particularly in a large number of African countries. We should bear that in mind.
	When my grandmother was a young woman she was brought up on the glorification of Garibaldi, so much so that it became the name of a famous biscuit. My grandmother was an extremely respectable and conventional lady but she thought Garibaldi was simply wonderful. When my mother was a young woman she began to admire very greatly those who sought to bring about the franchise for women by putting little firebrands into postboxes. She admired this because years and years of effort to get the women's franchise by every possible moderate method had been relatively unsuccessful. When I was a young woman I was brought up to admire Nelson Mandela because apartheid had been in existence by then for many decades, steadily getting worse, and it was only when, in effect, he adopted a policy of limited violence against property—not against human beings—that the position of the South African government became intolerable. Was my family wrong to glorify each of those people?

Baroness Kennedy of The Shaws: My Lords, I too support the efforts of the noble and learned Lord, Lord Lloyd, to remove subsection (3) and I echo what was said by the right reverend Prelate and the noble Baroness, Lady Williams, a moment ago. It is really important that we take account of the great influence that our law has on the rest of the common law world. It is for that reason that it is particularly important that we take account of the letter of Louise Arbour. When the United Nations High Commissioner for Human Rights writes and alerts us to the folly of this part of the legislation, we should give serious consideration to what she says.
	As the noble and learned Lord, Lord Lloyd, said, not only is she an eminent lawyer and judge—indeed, she was a member of the Supreme Court for a short time before her appointment as High Commissioner—she was also a very experienced prosecutor who prosecuted at the tribunal in the Hague for a significant time. We should take account of her understanding of human rights and the impact of and follow-on from our legislating in this way. I am concerned that other countries which also feel that they are facing issues of terrorism will take great delight in our passing such legislation and will use it in ways that will alarm us all. I heartily endorse the amendment of the noble and learned Lord, Lord Lloyd.
	I too think that there is perhaps some confusion. I urge the noble Lord, Lord Kingsland, a colleague at the Bar, to think again about his amendment because it introduces confusion. In an effort to find a third way—and I know that the Conservative Party has now become rather enthusiastic about the third way—I suggest to the noble Lord that this piece of legislation is not needed. The noble and learned Lord, Lord Lloyd, is right: there is already sufficient legislation to deal with the wickedness with which we are concerned, which is really incitement.

Lord Kingsland: My Lords, is the noble Baroness therefore saying that the Bill should contain no definition of "indirect encouragement"?

Baroness Kennedy of The Shaws: My Lords, I understand the temptation to define it but I think we should remove this part of the Bill altogether.

Lord Peyton of Yeovil: My Lords, I agree with what has been said. I salute with joy the speech of the noble and learned Lord, Lord Lloyd. I will be delighted to say goodbye to "glorification", which seems to me to have no home whatever in any Act of Parliament I have ever seen or heard of. I am glad to see that it is going—or at least I hope it will. I am not particularly attracted by the definition proposed by my noble friend. I rather lean towards the remarks made, with great eloquence and persuasion, by the right reverend Prelate. I certainly support the amendment.

Baroness Scotland of Asthal: My Lords, it is only right that I should declare to the noble Baroness, Lady Williams, that for many years I was brought up to admire her, and I still do.

Baroness Williams of Crosby: My Lords, but not, I hope, to glorify me.

Baroness Scotland of Asthal: My Lords, that is absolutely true, because others have done it before me. The amendments in this group fall into two categories. One category of view, expressed and expanded with such great depth and elegance by the noble and learned Lord, Lord Lloyd, is that the Government's amendments are useless, pointless, confusing and make no difference. I adopt the short form, adopted by the noble Lord, Lord Goodhart; I think those words were his way of describing it. A number of noble Lords who have spoken join him in that view. My noble and learned friend Lord Morris of Aberavon, although he said so rather more elegantly, thinks that those words are correct. Others, particularly the noble Lord, Lord Kingsland, who said so with his normal telegraphic style, agree with the substance but not the form. He agrees with the purport behind the drafting and the need to look at this issue, but does not believe that we have drafted the glorification provision in a felicitous way.
	I was happy that, just by chance, the noble Lord, Lord Carlile of Berriew, was in his place when the noble and learned Lord, Lord Lloyd, made his remarks in support of this amendment. I think it is very important that we remember the clear advice he gave, accurately read out and to be found in paragraph 23 of his report, where he stated very clearly his view that the proposal the Government are minded to advance is correct because of the real and present danger of radically minded young people being persuaded towards terrorism by apparently authoritative tracts, wrapped in a religious or quasi-religious context.
	It is very important that we bear that sound advice in mind when looking at this provision and whether its utility is actually made out. I absolutely understand the concerns of both my noble friend Lady Kennedy and the noble Baroness, Lady Williams, when they say, together with the right reverend Prelate, that others look to how we present these issues in the UK and may seek to emulate what we do here. That position has prevailed for a number of years. I can reassure my noble friend Lady Kennedy and the noble Baroness, Lady Williams, that we are conscious of our responsibility to play our part as members of the international community.
	Therefore, we bring forward these provisions with a proper understanding that the constraints imposed by the Human Rights Act and other legislation should bite on this. We bear those in mind, but we come back to the idea of proportionality, of balancing—something that we have been struggling with throughout this Bill. We, of course, come down on different sides. Her Majesty's loyal Opposition say that it is right in principle to address this issue, but wrong in the form taken; others say no.
	It is very important that when we consider this issue we look at what the Bill in fact provides, as opposed to what some may think it provides, and look at it in context. If one looks at, for instance, the promotion of 4 July and American independence, it is true to say that the king who was then on the throne has now sadly departed and things have moved on. We have to look at context. Amendments that seek to remove the various references to glorification in Clauses 1, 2 and 3 and the consequential provisions in Clause 20 are of the same effect as the ones tabled in Committee. The Government's position remains the same and is clear. The Government do not believe that it is acceptable that people should be allowed to make statements glorifying terrorism and in so doing make it more likely that their audience will themselves commit acts of terrorism. The reasons why we do not think it is right are the same as those set out in the report of the noble Lord, Lord Carlile of Berriew, as our reviewer.
	I also think it is right for me to be clear about what the Government are proposing in Clause 1. It will be a criminal offence to glorify terrorist acts in such a way that others could reasonably take it as a direction for them to emulate those acts. Simply showing understanding for why a person commits a terrorist act will not be sufficient to constitute a criminal offence. Simply condoning terrorism will not be sufficient to constitute a criminal offence. Even simply glorifying terrorism will not be sufficient to constitute a criminal offence. It is only when a statement is made that glorifies a terrorist act, to the clear extent that others will reasonably infer that the act is being glorified in order for those persons to emulate that act in existing circumstances, that it will constitute a criminal offence. One has to emphasise the "existing circumstances".
	There are a number of elements here. First, the act in question has to be a terrorist act or a convention offence. We do not think that some of the suggestions made at an earlier stage in the debate—Robin Hood, for example—would be a present circumstance that would constitute a terrorist act. Secondly, a statement would need to be made to members of the public. We are not talking about thought crime or private conversations in this regard. Thirdly, the act has to have been glorified. There has been some discussion about what the word means, but it means simply what the Oxford English Dictionary says it means. To glorify is to describe or represent as admirable, especially unjustifiably or undeservedly. We believe that this is clear enough.
	Fourthly, the act would need to be glorified in such a way that members of the public could reasonably be expected to infer that the glorified conduct should be emulated by them. This is crucial. The audience to the statement must be able to infer reasonably that they are being asked to emulate a terrorist act. Therefore, we are not talking about the celebrations for Bastille Day or 4 July, as it would not be reasonable for the audience to infer that the participants in, for example, Bastille Day celebrations, were urging them to commit terrorist acts. The likely effect on the audience has to come into play.
	Fifthly, the public would need to be encouraged to commit that act in existing circumstances. Therefore, the glorification of the American Revolution, for example, is hardly going to be reasonably inferred as encouragement to others to terrorist acts against the British Empire or King George III who, as we all know, is now sadly deceased. The political disagreement in that instance is not, we think, a live issue. Finally, we need to be clear that this offence can be committed only either where someone intends to encourage others to commit a terrorist act, or where they are reckless as to whether or not such a statement is likely to be so understood.
	Those provisions are, I respectfully suggest, relatively easy to understand and apply. I therefore hope that noble Lords will reflect that this does what the noble Lord, Lord Kingsland, wants; he says that he agrees in principle. I thank him for that and for the clarity with which he represents his party in this regard, but I say to him that the draftsman has expressed what we need in a way that complies not only with that intent, but with the commitment the Government gave to the people of this country in relation to it.
	The amendments rightly point out that there are references to glorification elsewhere. I hope that I have dealt with that. Clause 2(6) makes it clear that in answering questions about how a statement is likely to be understood and what the public can reasonably infer, the court must have regard to the contents of the statement or the publication as a whole and the circumstances of its publication. The test is not quantitative but qualitative: it is whether the surrounding material and context of the statement indicate that the whole statement does not have the effect that a mere extract which may be objectionable would have. That provision is replicated in Clause 1(4).
	We believe that, for the reasons I have given, the concerns that were expressed by noble Lords are met by the way in which the provisions have been drafted. Although the noble Lord, Lord Peyton, would like the whole of this subsection removed, in order to protect appropriately the citizens of our country, I regret that even his own party is likely to disappoint him in that regard. I invite noble Lords to say that they are content with the explanation that I have given and are reassured sufficiently to enable us to allow this part of the Bill to remain unamended.

Lord Lloyd of Berwick: My Lords, I am grateful to the Minister for her reply, which was as careful as always. I am also grateful to those who have spoken in support of the amendment. I want to make it quite clear that my objection is not just to the drafting of subsection (3). My objection is this: we are creating, by subsection (3), a brand new criminal offence which should not be on the statute book. For that reason, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 8) shall be agreed to?
	Their Lordships divided: Contents, 270; Not-Contents, 144.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Kingsland: moved Amendment No. 9:
	Page 1, line 15, leave out subsection (3) and insert—
	"( ) For the purposes of this section, "indirect encouragement" comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it."

Lord Kingsland: My Lords, the House has already spoken to the amendment. It simply remains for me to move it and to test the opinion of the House. I beg to move.

On Question, amendment agreed to.
	[Amendments Nos. 10 to 12 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 13:
	Page 2, line 15, leave out from "whether" to "relates" and insert "anything mentioned in those subsections"

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Kingsland, for not moving his amendments.
	Government Amendment No. 13 is a technical amendment consequential on government Amendment No. 4, which your Lordships have already considered. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 14 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 15:
	Page 2, line 22, leave out from "proceedings" to end of line 26 and insert "for an offence under this section against a person in whose case it is not proved that he intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism or Convention offences, it is a defence for him to show-"

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 15, I shall speak also to Amendment No. 16 on Clause 1 standing in my name.
	As we have discussed, I tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, mirroring the same test as exists in Clause 1. I also tabled amendments to modify the wording of Clause 1. They do not change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as those in Clause 1, to the extent that this is possible for a different offence.
	These amendments relate to the defences in Clauses 1 and 2. I shall quickly summarise how those defences work. Clause 1 creates the offence of encouragement to terrorism. Under it, it will be an offence for a person to publish or cause another person to publish on his behalf a statement when they either intend that it should be understood as an encouragement to terrorism or are reckless as to whether it is likely to be so understood. The clause will use the subjective definition of recklessness as set out in Regina v G.
	Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if he disseminates a publication intending that those to whom it will become available will be directly or indirectly encouraged to commit, prepare or instigate acts of terrorism or intending that they find the information to be useful in the commission or preparation of terrorist acts; alternatively, the individual who is disseminating the publication is considered to have committed an offence if he is reckless to the possibility that they will be so encouraged or find the information so useful. In deciding whether a publication amounts to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct and the contents of the publication. It is currently a defence for a person who is charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of the provision or use by him of a service electronically; that the statement neither expressed his views nor had his endorsement; and that it was clear in all the circumstances that it neither expressed his views nor had his endorsement.
	Amendments Nos. 15 and 16 would give effect to the changes which I signalled in Committee. Amendment No. 15 would generalise the defence in Clause 1—that is, that the person who published the statement did not endorse it and that it was clear in all the circumstances that he did not endorse it—so that it is available to everyone and not just to those who are providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, there is no reason why a defence should be available to those who commit the offence intentionally.
	Amendment No. 16 is a technical amendment. It clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. The defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 to show that he engaged in the conduct described in Clause 2(1)—namely, the dissemination of a terrorist publication—only in the course of the provision or use by him of a service electronically; that the publication so far as it encouraged terrorism neither expressed his views nor had his endorsement; that it was clear in all the circumstances that it did not express his views nor had his endorsement; and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. Again, we have brought forward amendments to widen this defence so that it extends to all those who can prove that material contained in the publication, in so far as it encouraged terrorism, neither expressed their views nor had their endorsement, and that it was clear in all the circumstances that this was so. In the context of including an intent test in Clause 2, we have also brought forward amendments to remove the defence from those who disseminate information of use to terrorists. With the intent test in place, this defence is no longer necessary.
	Under Clause 2(8), it is also a defence for a person who is prosecuted under Clause 2 to show that he had not examined the publication in respect of which he had been charged; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that the matter contained in the publication did not have his endorsement. In the light of the inclusion of an intent test in Clause 2, we have brought forward amendments to remove this defence from the Bill.
	Clause 3 provides a power for a constable to issue a notice to the effect that the content of an electronic service appears to him to amount to encouragement to terrorism or information of assistance to terrorists. A person who receives such a notice must ensure that the offending material is no longer available to the public within two working days. If a person fails, without reasonable excuse, to comply with the notice, he will be deemed to endorse the material in question and therefore will not be able to take advantage of the defences in Clauses 1 and 2. A person who receives a notice under Clause 3 will be responsible for repeat statements—in other words, statements that are the same as the statement to which the original notice related—unless he can show that he had taken reasonable steps to stop repeat statements appearing. This defence is set out in Clause 3(5). It is not a freestanding defence; it forms an element of the defences in Clauses 1 and 2.
	Bearing in mind that Amendment No. 14 of the noble Lord, Lord Goodhart, was not moved, and that other amendments in the group have not yet been moved, I do not propose to deal with any further amendments unless noble Lords indicate that I have somehow misunderstood the way in which we are now dealing with these amendments. I beg to move.

Lord Goodhart: My Lords, I shall clarify the situation. Following the new amendments introduced by the Government, the position is considerably changed. It is not now my intention to move any of the amendments in the group other than Amendment No. 61, to which I shall speak when we reach it in due course.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 16:
	Page 2, line 29, after "circumstances" insert "of the statement's publication"
	On Question, amendment agreed to.
	Clause 2 [Dissemination of terrorist publications]:

Lord Kingsland: moved Amendment No. 17:
	Page 2, line 45, at end insert—
	"( ) A person commits an offence under this section if he disseminates a terrorist publication and either—
	(a) he does so with the intention of directly or indirectly encouraging or inducing the commission, preparation or instigation of acts of terrorism, or of providing information with a view to its use in the commission or preparation of such acts, or
	(b) he is reckless as to whether the dissemination of that publication will have such an effect."

Lord Kingsland: My Lords, your Lordships will recall that, at the end of the Committee stage, the Liberal Democrats and my own party were pressing the Government to introduce intent into Clause 2. We then tabled Amendment No. 17 to that effect. Last Friday, which was the closing day for amendments, the Government, somewhat to our surprise, although delight, tabled their own amendment on intent to Clause 2. Once again, the differences between us and the Government are not differences of principle; they are differences of drafting. It is in that context that I wish to promote Amendment No. 17.
	As your Lordships can see from the Marshalled List, Amendment No. 17 would amend the Bill so that the offence would be to disseminate a terrorist publication,
	"with the intention of directly or indirectly encouraging . . . terrorism".
	In the Government's recently tabled alternative provision, which flows over two amendments, Amendments Nos. 19 and 20, the definition of intent is,
	"an intention that the persons to whom the publication is or will become available . . . should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
	In our view, the Government's definition is crucially defective in at least one respect. It is difficult to see, for example, how a librarian in a public library or university could possibly know whether a large pool of potential borrowers includes people who would be so encouraged. The key question for your Lordships to determine is what "should include" means in this context.
	I recently received a communication from an organisation called Universities UK, which gave a graphic example of the problems that are likely to confront librarians in this context. Consider the position of the British Library. The books on the shelves are available to everybody who lives in the United Kingdom. We can be certain that there are people in the United Kingdom who could find information in standard chemistry books useful in making bombs. Therefore, by intending to make a standard chemistry book generally available, the librarian would appear to be guilty of the offence as defined by the Government's amendments. Why is that? It is because if the librarian knows this but does nothing about it, he could be said to be reckless as to whether one or more of those who would borrow and read the book would be among those who could be directly or indirectly encouraged to commit acts of terrorism.
	That is why, I suspect, the Government have chosen to keep part of Clause 2(9) as a defence for someone so accused. In these circumstances, the individual will not be guilty if he can establish on a balance of probabilities either that he is not aware of what is in the publication or, even if he is aware, that he would not have endorsed it. Yet why should somebody be placed in this position, having to wait until they are prosecuted, then raising a defence on the balance of probabilities that they are innocent? The proper position should be that intent be established by the prosecutor in the first place. I beg to move.

Lord Lloyd of Berwick: My Lords, like everybody else I was glad and relieved that intention was to be an ingredient in the offence of dissemination. I added my name to this amendment before I saw the government amendment—indeed, before the government amendment had even seen the light of day. Having now seen both amendments, I believe that Amendment No. 17 is the better of the two. Both are designed to ensure that we catch the people we want to catch, and nobody else. The difference is that Amendment No. 17 does so in a fairly simple and straightforward way that we can all understand. Amendment No. 20 is not so simple. The Home Office seems to have a special genius at the moment for unnecessary complication. Why must we talk, as Amendment No. 20 does, about persons who "should include persons", when we can be so much simpler?
	Clause 1 of the Bill is intended to catch those who publish statements encouraging terrorism. Clause 2 is intended to catch those who disseminate those statements. Both should surely have the same mental element, which is to encourage terrorism—or the same recklessness, although I do not deal with that now. That is what Amendment No. 17 will ensure. Is there anything which the Minister would wish to see covered in it which is not there? I believe not. Nothing in Amendment No. 17 will leave those who need protection unprotected. If I am right in that, I hope the House will vote for it on the principle of Occam's razor, that words should not be multiplied unnecessarily. Amendment No. 17 is the simpler amendment, and I invite your Lordships to accept it.

Lord Goodhart: My Lords, my name, too, is on this amendment, and I support everything that the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lloyd, have said.
	I felt a certain regret listening to the noble Lord, Lord Kingsland, open the debate. He was making a good case for getting rid of the concept of recklessness altogether. Unfortunately, he failed to support our amendment to do that when it came up, which would have been the simplest way of dealing with this particular problem.
	The language used in the Government's draft is extraordinarily turgid and virtually impossible for anybody who is not fairly expert in the law to read and understand. While I support the objective that they are aiming for, Amendment No. 17 is simpler and much easier to understand and it achieves the Government's aim a good deal better than their own amendment does.

Baroness Williams of Crosby: My Lords, I add just one thought as a non-lawyer. Amendment No. 20 is almost impossible to understand. The noble Baroness said, with some feeling, that she had done her best to meet the House, and she must be feeling quite fed up that we are not at the moment praising and celebrating—even glorifying—Amendment No. 20. Without any doubt, she has tried hard to meet the House. The question is why her amendment is so totally obscure.
	The noble Baroness used the phrase more than once that she hoped for an amendment that would make Clause 2 a mirror of Clause 1, in the sense of embodying the concept of intent. Yet this is a distorted mirror, or even an old mirror which is cracked in places. This is not a direct mirror image of the amendment to Clause 1, because it refers to this extraordinary business about an intention not to bring about an act of terrorism—not to directly or indirectly encourage an act of terrorism—but to,
	"include persons who will be directly or indirectly encouraged or otherwise induced by it to commit, prepare or instigate acts of terrorism".
	Why has this strange dog-leg concept suddenly come in here? Would it mean, if I wished to be found guilty, that I would have to scurry round all the more extreme left-wing and right-wing clubs in universities to make sure that there were groups that could be described as wishing to glorify terrorism?
	Somebody in another place said on this Bill, effectively, that the nature of law is that it needs to be understood by the citizen in order to be obeyed. Most citizens wish to obey the law, but if they are completely incapable of understanding it, then, even with the best of intentions, it is hard for them to do so. I see no reason why the Government should not embrace Amendment No. 17 rather than try to argue a case for Amendment No. 20. I hope that the House will express its desire that the Government should make that change.

Baroness Carnegy of Lour: My Lords, the Minister said earlier that she was disappointed that the House was not thanking the Government for the enormous move they had made in bringing the matters of intention and of recklessness into the Bill. This debate does not in any way diminish my gratitude to them for making a big move towards assisting the university and other librarians whom they had put so much on the spot. Having said that, I believe, as an ordinary human being reading the two amendments, that Amendment No. 17 in the name of my noble friend Lord Kingsland is so much clearer and more comprehensible to anybody who reads it that it must be desirable. The Government may find some small fault with it, but I hope that they will accept it, because Amendment No. 20 is extremely difficult to understand. Is it grammatical to say "an intention" that "should include"? Why not to "intentionally include"? That is by the way. I think that Amendment No. 17 is enormously preferable.

Baroness Warwick of Undercliffe: My Lords, I, too, start by warmly welcoming the Minister's decision to amend the Bill to include a reference to intent in Clause 2. That is something that Universities UK, in which I declare an interest as chief executive, has been pressing for, alongside the British Library, SCONUL, the AUT and others. I thank the noble Lords, Lord Goodhart and Lord Kingsland, for their dogged pursuit on this issue on behalf of the library and academic communities, and the many noble Lords who have added their voices in support of the need for an intent amendment in Clause 2.
	Unfortunately, I too find myself in difficulty with the detail of the Government's amendments. Noble Lords will agree, I am sure, that the amendments have a certain labyrinthine quality, of which someone somewhere can be justly proud. Welcome though they are, I do not believe that the amendments before us, although it has taken me some time to understand and interpret them, solve the problem that this House and others outside it have identified.
	When I called at Second Reading for the inclusion of an intent amendment in Clause 2, I was seeking that a person should be guilty of an offence of distributing a terrorist publication only if they intended to provide encouragement or assistance to terrorists. I and others offered that suggestion because the drafting of the clause is otherwise so wide that we could not see how the routine work undertaken by our libraries and academics could go on under the Bill as drafted. We pointed out that the definition of "terrorist publication" depended on the interpretation by a hypothetical, unknown third party of a publication. How could librarians know the motivations of all their potential borrowers? Other noble Lords have referred to that point. Of course, they cannot, especially in the case of public libraries. That being so, the only other option would be to prevent the loan of a very wide variety of books that might, in certain circumstances, be interpreted by certain people as either encouraging or assisting terrorism. That is why this House has argued so powerfully that the result of the Bill as drafted would be either de facto or self-imposed censorship; worse, we argued, academics and librarians would routinely and quite unintentionally fall foul of the offence as drafted. Even if they were never to be prosecuted, we argue that it would be highly unsatisfactory if legislation was so drafted that large numbers of people could not practically comply with it.
	I had hoped not to have to rerun those arguments, because the intent amendment would solve the problem. Either a person would intend to encourage or assist terrorists, or they would not; the prosecution would prove this or fail to. And so the offence would work—notwithstanding all the problems of the definitions of "terrorist publication", "indirect encouragement" and "glorification". That was the test that I applied to the Government's amendment: would it catch those who intended to help terrorists and leave those who did not free to do their jobs? I hope that noble Lords will bear with me while I try to articulate the difficulties that I see with these amendments, because I feel that I owe it to my noble friend the Minister, who has put in so much effort to reassure myself and others.
	Government Amendment No. 19 makes intention or recklessness a condition of the offence. So far, so good. The offence in question is the distribution of terrorist publications. Amendment No. 20 then defines what is meant by "intention" and "recklessness"—and that is where the difficulty arises. It says that intention means,
	"an intention that the persons to whom the publication is or will become available in consequence of that conduct should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
	Broadly, the same applies to material that could be useful to terrorists. That means that the offence is,
	"to intend to provide the publication to a group of people, including some who will be encouraged or assisted to commit terrorist acts".
	But what if the group of people to whom the publication is being lent could potentially include everybody? The public library does not screen its borrowers; the bookshop does not prevent people walking in off the streets to buy its books. Since we know to our cost that there are people in the world who are terrorists, if you make material available to everybody you will necessarily fulfil the condition described in the definition of intent—that the persons to whom the publication is available should include persons who will be encouraged or will find certain material useful.
	I join other noble Lords in asking the Minister to clarify, example by example, how the scheme is intended to work. Again, I ask for the indulgence of the House, but what does "should include" mean, in Amendment No. 20? What if the group of people to whom you might lend or sell in the course of your activities included potentially everyone—the general public? How should a public library, for instance, ensure that the group of people to whom it is lending books does not include people who may be encouraged or assisted in committing terrorist acts? Does the Minister envisage some form of screening of borrowers? If a person makes a book available for unrestricted sale or loan, must they be certain that there can be no possible terrorist application for material in that book? If the latter is the case, how is the librarian, bookseller or academic to judge whether there is a terrorist application in the context of subsections (2) to (7)?
	Very specific examples have been raised with me and with others, and it is important, if the Minister is to reassure us, that we have specific answers. I shall give just one example. If there is a bookshop on Charing Cross Road open to the public, anyone can walk in off the street. On its shelves are copies of The Anarchist's Cookbook, which, if noble Lords are interested, is also available on Amazon at a price of £29.99. By putting the book on sale Mr Jones, the proprietor, intends that anyone in the world should be able to buy it, notwithstanding the fact that he knows that there are terrorists in the world. One day, Mr Disaffected from Cardiff comes into the bookshop while on holiday in London and buys the book. Mr Disaffected has terrorist sympathies and a keen interest in bomb-making. Mr Jones does not know that, but since he intends that anyone should be able to buy his books, he sells Mr Disaffected The Anarchist's Cookbook. The question is whether Mr Jones commits an offence—and if not, why not? Should Mr Jones not have The Anarchist's Cookbook on his shelves? How should he have known that he should not sell it, or should he have screened his customers and sold the book only to those who were security cleared?
	If these amendments help us to answer these questions, I am afraid that I do not see it. I suspect that the best answer available is in government Amendment No. 40, which makes it clear that the statutory defence in subsection (9) is available to those whose intention is not proved. If you need that defence, surely we have not achieved what we set out to do—to place the onus on the prosecution to prove that the lender, bookseller or academic intended to commit the crime. Can the Minister therefore explain how this defence would work and why you might need it if no intent had been proven?
	The Minister wrote to the noble Lord, Lord Kingsland, last week to give notice of her intention to amend the Bill, and I was grateful to the noble Lord for sharing a copy of that letter with me. The Minister wrote:
	"We have listened very carefully to the strong representations which were made on behalf of the library and academic communities. Accordingly, I have tabled a number of new amendments which insert 'intent' and mirror the same tests that exist in Clause 1".
	I have spoken at some length because it does not seem to me that the amendments before us mirror the tests in Clause 1. Amendment No. 17, tabled by the noble Lords, Lord Kingsland and Lord Goodhart, seems a more accurate mirror, and I hope that the Minister will look very carefully at the amendments. She has repeatedly given assurances that she wishes to respond to our concerns. I hope that she can give specific responses, and I would certainly hope to be reassured by what she says, because the Government's intentions in this respect are clearly good. I look forward to the Minister's reply.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for setting out so clearly her continuing concerns. All the concerns she has enumerated are met by these amendments. The purpose of them is to put beyond doubt that the concerns the noble Baroness has outlined are without foundation.
	The issue with government Amendment No. 40 was that we were conscious we needed to deal with each and every anxiety that has been expressed. Therefore, not only did we want to make it clear that the offence would not be made out in the way that was worried about, but that even if anyone should think that it might be, which is not admitted, you would have the defence in government Amendment No. 40. This is belt, braces, garters and anything else you need to be assured that this will work.
	I shall deal with why we prefer our amendment. Those drafting this Bill were given clear instructions that there had to be clarity and that each amendment had to be consistent with the other so that they fitted. I understand that Amendment No. 17 of the noble Lord, Lord Kingsland, seeks to achieve precisely the same as the Government's amendments. The difference between us is that we maintain that the Government's amendments are internally consistent with the other group of amendments we have drawn up, and, for that reason, need to be preferred.
	Let me seek to give the clear assurances that noble Lords seek, before dealing with the difference I say there is between Amendment No. 17 and our amendments. The formulation of the Government's amendments comprising the intent test includes the requirement that the person intended that the audience of the document's dissemination should include those who will be directly or indirectly encouraged. That implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination. The assurance about the specific intent sought by the noble Baroness is there. If a person is to be prosecuted on the basis that they are reckless as to the effect of the publication, they will have the necessary mental element—if it can be shown that they knew the content of the publication, and they were reckless as to whether or not the people in the audience could include persons who would be encouraged to terrorism. If a person knows the content of a publication, or it is so lurid or so notorious that they cannot have failed to realise its content, they will commit the offence recklessly if they supply it and it is reasonable that access to such publications should be restricted.
	Libraries take care with pornography, and it is reasonable to expect them to take care with publications that encourage terrorism or are useful to terrorists. Those are specific documents, not the issues the noble Baroness spoke about, such as The Anarchist's Cookbook. I do not know whether she was telling us we should all go out and buy it, because she advertised where we could do so. The example she gave would not be caught by this Bill, as it was not the intention of the person selling the book that there would be terrorists in the audience, and the whole point was that these terrorists would get the book and then use it. That was not the seller's intent, and therefore they would not fall within this construct we have put in.

Lord Goodhart: My Lords, I see that it is not the intent of Mr Jones the bookseller that this book should be read by terrorists, but is he not being reckless because he knows that there are terrorists out there and that one or two of them might come in and buy his book? Why is it therefore not recklessness to have it on sale and not have any checks on who comes in to buy it?

Baroness Scotland of Asthal: Because, my Lords, the whole purpose of the publication is not to generate terrorism. It is a bit like the noble Lord's example of the chemistry book. We know that chemistry books could be used by terrorists to make bombs. However, the purpose of writing a chemistry book and teaching chemistry is not so that terrorists will go out and create bombs and kill people. Therefore, in the Government's opinion, it is clearly beyond doubt that a chemistry textbook would not be considered as wholly or mainly for the purpose of being useful to terrorists.
	I do not know about The Anarchist's Cookbook, but I doubt whether that is wholly or mainly the purpose of the writers of the book that it should be useful to terrorists. That is what is important. The formulation of the Government's amendments comprising intent and recklessness includes the requirement that the person intended that the audience of a document disseminated should include persons who will be encouraged, not that it might include them by a stretch of the imagination. Their intent was that it should include such persons. As I have said, that implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination.
	There are those who argue that we have now set this so high that it might be difficult for us to catch those who are producers of publications that are specifically targeted at terrorists and to be used by terrorists, in these circumstances. The way we have structured it, we believe that will not be the case. But we have been conscious of the concerns that were expressed by my noble friend and others during this debate. We have already talked in the earlier debate about subjective recklessness and the need for it to be directly focused.
	Amendment No. 17 does not work with all the different sorts of conduct currently set out in Clause 2(1). In particular, the intention and recklessness in that amendment do not make sense where a person has a terrorist publication in his possession with a view to disseminating it. If one looks at, for instance, Clause 2(1)(f), it is impossible for a person to possess something with the intention of encouraging terrorism. That formulation implies that the possession must be capable of doing the encouraging, and of course it is not. The government amendments make it clear that the intention or recklessness relate not to the possession, but to what will happen if the possessed publication reaches, as contemplated, the hands of potential terrorists.

Lord Goodhart: My Lords, I am sorry to intervene again. I think the Minister is incorrect in suggesting that our amendment does not cover that. In what is now Clause 2(1), where it says:
	"A person commits an offence"—
	we have put in our definition of the offence—
	"if he disseminates a terrorist publication".
	The rest of Clause 2(1) is a definition of what constitutes dissemination, which includes having a publication in your possession with a view to passing it on to someone else.

Baroness Scotland of Asthal: My Lords, all I can say to the noble Lord is that the way this is raised in our amendment is the clearer, and sits the more easily with the other amendments. I understand that noble Lords say they have had a short period of time to look at this, and they are trying to make an amendment that is consistent. But I respectfully and gently suggest in relation to this matter that we should not have opposition for opposition's sake. We all have the same intent. I know that is not the way noble Lords opposite may traditionally have worked, but we believe the construct we have now fits well and provides us with the clarity we need. We are not in disagreement about the thrust of what we want to achieve; it is just whether we agree on the draftsmanship.

Baroness Williams of Crosby: My Lords, I agree completely with the noble Baroness that there is no desire to make politics out of this particular argument. However, can she explain, not least in the light of the forceful intervention by the chief executive of Universities UK, why it is that we cannot move towards the much simpler, more transparent and clearer definition of what we want to do, rather than the complex and obscure wording that has come out of the Home Office? I think we want the same end, but I am still, I must admit, deeply puzzled that the noble Baroness finds it so difficult to accept the clearer formulation.

Baroness Scotland of Asthal: My Lords, the reason we find it difficult is that we think it is not clearer when one looks at the whole Bill and how it fits together. That is the reason.
	The dissemination definition is not entirely relevant, if I may respectfully say so to the noble Lord, Lord Goodhart. In his amendment, dissemination still includes possession. That is where the complexity is. We have looked at this carefully. If I may remind noble Lords, we have really tried to do what the House wanted and what we thought was proper.
	I just want to say to the noble Baroness, Lady Carnegy of Lour, that of course I thank her—for her congratulations I was going to say, but really it was gratitude that she expressed to the Government. I think that I have now come to the stage where I recognise that it is unreasonable, unsafe and unsatisfactory ever to expect gratitude for no matter how much work one puts in.

Lord Kingsland: My Lords, I am surprised to hear the noble Baroness say that in her case because the House universally respects the enormous amount of work that she has put in.

Noble Lords: Hear, hear!

Lord Kingsland: My Lords, if sometimes it appears temporarily in vain, the marvellous thing about your Lordships' House is that we always have another chance to put things right.
	The Government, in my submission, have had a good chance to compare the two amendments. I believe that the speeches made in support of Amendment No. 17 have proved extremely cogent. With the greatest respect to the Minister, I do not think that she has answered them satisfactorily. That is not, of course, her fault.
	She made the point that she was looking for consistency in the Bill. Consistency is important in legislative drafting, but so is simplicity and so is certainty. In my submission, neither of those equally important ingredients apply to the Government's amendments. Therefore, I would like to say to her, although I say it with great regret, that I am compelled to put the issue to your Lordships' House.

On Question, Whether the said amendment (No. 17) shall be agreed to?
	Their Lordships divided: Contents, 234; Not-Contents, 134

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Kingsland: moved Amendment No. 18:
	Page 2, line 46, leave out "commits an offence" and insert "disseminates a terrorist publication"
	On Question, amendment agreed to.
	[Amendments Nos. 19, 19A, 20, 20A and 20B not moved.]

Baroness Scotland of Asthal: moved Amendment No. 21:
	Page 3, line 10, leave out from "within" to end of line 21 and insert "subsection (1A), if matter contained in it is likely-
	(a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or
	(b) to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them."

Baroness Scotland of Asthal: My Lords, I was tempted to say "moved formally" on the basis that noble Lords have heard so much from me this afternoon that they understand the amendment and its purpose and they either agree or disagree with it. I beg to move.

Lord Haskel: My Lords, I have to tell your Lordships that if Amendment No. 21 is agreed to, I cannot call Amendments Nos. 21A to 23 because of pre-emption.

Lord Kingsland: My Lords, I rise to speak to Amendment No. 21A. At the time I tabled the amendment, it appeared that the Government intended to retain Clause 2(3). However, I now see that the Government have removed that subsection and replaced it with Amendment No. 21; so naturally I find myself in some difficulty in pursuing Amendment No. 21A.
	However, I just want to observe—the noble Baroness kindly wrote me a letter about this—that the essence of my concern is still outstanding and it relates to the definition of "matter". In my submission, "matter" can mean only two things in Clause 2; and they are summarised very helpfully in Clause 2(7). "Matter" must be either the statement under consideration and how it is likely to be understood or the usefulness mentioned in subsection (5). Subsection (5) deals with the definition of information of assistance in the commission or preparation of such acts.
	I am not going to pursue my amendment now but I should be most grateful if the noble Baroness, either today or by means of a further amendment at Third Reading, could confirm that that is the scope of the definition of "matter".

Baroness Scotland of Asthal: My Lords, I shall be happy to do that. I can certainly write to the noble Lord. I take it from the noble Lord's amendment that Amendment No. 21 is agreed to for reasons that are clear. I do not think that the noble Lord has any reason to be concerned about "matter" but I should be very happy to write in relation to that matter—forgive the pun.

Lord Kingsland: My Lords, I am most grateful.

On Question, amendment agreed to.
	[Amendments Nos. 21A to 23 not moved.]

Lord Lloyd of Berwick: moved Amendment No. 24:
	Page 3, line 22, leave out subsection (4).
	On Question, amendment agreed to.

Lord Haskel: My Lords, if Amendment No. 25 is agreed to, I cannot call Amendments Nos. 26 and 27 due to pre-emption.

Baroness Scotland of Asthal: moved Amendment No. 25:
	Page 3, line 30, leave out subsection (5).
	On Question, amendment agreed to.
	[Amendments Nos. 26 and 27 not moved.]

Baroness Scotland of Asthal: moved Amendments Nos. 28 to 30:
	Page 3, line 40, leave out "the context of" and insert "relation to"
	Page 3, line 45, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1B) to (4)"
	Page 3, line 49, at end insert—
	"( ) For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person—
	(a) is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or
	(b) in fact makes use of it in the commission or preparation of such acts."
	On Question, amendments agreed to.

Lord Haskel: My Lords, if Amendment No. 31 is agreed to, I cannot call Amendments Nos. 32 to 34 due to pre-emption.

Baroness Scotland of Asthal: moved Amendment No. 31:
	Page 4, line 1, leave out subsection (8).
	On Question, amendment agreed to.
	[Amendments Nos. 32 to 35 not moved.]

Lord Haskel: My Lords, if Amendment No. 36 is agreed to, I cannot call Amendments Nos. 37 to 39 due to pre-emption.

Baroness Scotland of Asthal: moved Amendment No. 36:
	Page 4, line 10, leave out from "proceedings" to "did" in line 20 and insert "for an offence under this section against a person in respect of conduct to which subsection (9A) applies, it is a defence for him to show—
	(a) that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
	(b) that it was clear, in all the circumstances of the conduct, that that matter"
	On Question, amendment agreed to.
	[Amendments Nos. 37 to 39 not moved.]

Lord Haskel: My Lords, my brief says that if Amendment No. 40 is agreed to, I cannot call Amendment No. 41.

Lord Bassam of Brighton: My Lords, I think there is an inadvertent error in the brief.

Baroness Scotland of Asthal: moved Amendment No. 40:
	Page 4, line 22, leave out from "endorsement" to end of line 27 and insert—
	"(9A) This subsection applies to the conduct of a person to the extent that—
	(a) the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(a); and
	(b) that person is not proved to have engaged in that conduct with the intention of making that matter available as mentioned in subsection (1B)(a)."
	On Question, amendment agreed to.

Baroness Williams of Crosby: moved Amendment No. 41:
	Page 4, line 27, at end insert—
	"(e) that the publication to which the conduct related was received by a library in consequence of its obligations under the British Library Act 1972 (c. 54) or the Legal Deposit Libraries Act 2003 (c. 28)"

Baroness Williams of Crosby: My Lords, I am delighted that the amendment has survived our procedure. The amendment is small but very important. I am very surprised that the Government have not embraced it. To put it very straightforwardly, its purpose is to exempt the British Library and the deposit libraries from the curtilage of the Bill. It is extremely important that that is done.
	The British Library is a modern heritage. Therefore, in many ways it is a very important part of this country's future. Two very clear duties are laid on it. One is that it is a library of record, which means that every publisher, writer, and so on, in the country, has to deposit with the British Library every publication. In that sense, it is rather like the Library of Congress in the United States. It makes it one of the great libraries of the world. Under the provision of the Legal Deposit Libraries Act 2003, that still holds good. However, the British Library Act 1972, which was passed before the British Library was built, but was planned, laid a very clear responsibility on the library to promote knowledge and education, the pursuit of truth, freedom of expression and many other highly desirable things.
	It must be very clear from the discussions that have taken place in the House today and in Committee that there is considerable doubt about the responsibility of a library such as the British Library in terms of this legislation. It was made fairly clear by the noble Baroness, Lady Warwick, that she is not clear what responsibilities rest on university academics and librarians. The British Library is in exactly the same position. It took legal advice before, it must be said, the noble Baroness moved the major changes that are a part of bringing in the concept of intent. However, at that stage—to be honest, it was not much affected by intent—the legal advice was that the British Library might well find itself in very great difficulties with this Bill. It might find that people were up before prosecutors because they were alleged, in some way, to be instigating or encouraging terrorism.
	In Committee, this matter was raised by the noble Lord, Lord Eatwell, who is the chairman of the British Library. Pursuant to having a very strong wish not to seem to seek special privileges for the British Library, he went along with the terminology at that time on the grounds that there might be a rogue librarian in the British Library and such a person should not be protected from the normal exigencies of the law. However, the word "person" can be interpreted both as an individual person and in the corporate sense as comprising a corporate person. On the basis of advice that he has received on the British Library being a corporate person, the noble Lord, Lord Eatwell, has specifically asked me to say that he presses very strongly for the amendment that I am now moving because he believes that as a corporate person, the British Library and the deposit libraries, which include the national libraries of Scotland and Wales, should be exempted from the Bill. His reasons are that being under the Bill could be a major obstruction to the development of those libraries.
	I am not sure whether all noble Lords are aware of the extent to which the British Library has been at the centre of the building up of a global network, which is increasingly influential and increasingly highly recognised in many parts of the world, not least in the part of the world that the right reverend Prelate the Bishop of Winchester is so closely associated with in Africa and in other parts of the Anglican communion. It would be devastating if the British Library were to find itself stopped in its tracks in developing this network of extraordinary education and information facilities as a result of an incomprehension or misunderstanding of the purport of this Bill. I frankly thought that, by this time, the Government would have adopted the amendment and would have made it quite plain that, while the provision could not protect individuals, it would protect the corporate persona of the British Library and the deposit libraries.
	I cannot put this too strongly: it can only be in the interests of this country that we encourage this development of the knowledge economy and knowledge society as a substantial part of where our future lies. I think that all of us recognise the astonishing contribution that the United Kingdom has made to the world of higher academic studies, research and scientific study.
	For all those reasons therefore—and I had thought that I was pushing at an open door—I hope that the Government will carefully consider the matter before Third Reading. I am not about to press this amendment to a Division. If they thought about it, it would be clear that they could exempt these libraries from the purport of the Bill and everyone would applaud them for doing so. I speak to this amendment as strongly as I possibly can because the damage that will be done to the United Kingdom if we do not make such an exemption will be profound. Beyond the United Kingdom, the damage that will be done to the whole network of knowledge throughout the world will not be enhanced in any way by encumbering it with a Bill of this kind. I beg to move.

Lord Kingsland: My Lords, we support what the noble Baroness, Lady Williams, said and have nothing further to add.

Baroness Scotland of Asthal: My Lords, I need only say that the noble Baroness's concerns have been registered. Indeed, the noble Baroness was right to make reference to my noble friend Lord Eatwell, who has been vigorous in his pursuit of the interests of the British Library and other universities and libraries. We believe that the amendments that we have now put forward comprehensively put the British Library in a situation where it need fear for nothing in relation to this Bill. We really think that the amendments do that. We have already talked about intent and recklessness in relation to Clause 2. As was requested, it means that libraries will not be caught by the offence. However, we are also seeking to generalise the defence in Clause 2(9). That should demonstrate absolutely that the offence will not damage the interests of copyright libraries or any other libraries. I am confident that that satisfies the concerns of those who have spoken with such passion on behalf of the British Library, which is one of the libraries that should be applauded for the work that it does. I assure the House that, in our view, this amendment is wholly unnecessary.

The Lord Bishop of Winchester: My Lords, before the Minister sits down, in light of what she has just said and of what the noble Baroness said with such clarity, why would it not be admissible or wise—the Minister spoke earlier about belts, braces and garters and so forth—to put this on the face of the Bill, granted its importance?

Baroness Scotland of Asthal: My Lords, the terms under which these provisions will bite are clear. The noble Baroness is right to make reference to the British Library and the deposit libraries as being libraries of great excellence. However, in answer to the right reverend Prelate's question, there are many other libraries and universities that we might also have to list as being beyond question. We believe that the universality of these provisions is the best way to protect all those who may be subject to them. This amendment is simply not necessary. They may have been arguable before, but as a result of the significant changes that we have made, no longer necessary.

Baroness Williams of Crosby: My Lords, I apologise because the hour is getting late, but I have one further question. Does the Minister agree that the position of the deposit libraries with their specific legal obligations is not the same as that of all the other libraries? I do not wish to do anything other than protect all libraries, as I am sure the Minister does too, but these particular libraries have a legal duty laid upon them which is distinct from that of most other libraries because they are deposit libraries and because specific Acts of Parliament have been passed in their respect which have made specific obligations on them that are not legally shared by all other libraries. That is the only reason why I moved this amendment. Given their exceptional position, might what the right reverend Prelate said be considered a little before we finally conclude on this Bill?

Baroness Scotland of Asthal: My Lords, as I have indicated from the very beginning, the ability to continue to scrutinise does not cease until this Bill leaves this House. However, it is only right to tell the noble Baroness that we have, in introducing the amendments that we have now placed before the House, considered these issues with great care, not least because we took very seriously the concerns that were so cogently expressed by a number of noble Lords including my noble friends Lord Eatwell and Lady Warwick, and indeed the noble Baroness, who has such experience in this area. It is because we took those comments so seriously that we included the intent and the defences, notwithstanding the fact that we believed that the old construct would suffice to meet the concerns that the libraries had expressed. We think that having done that we should now have assuaged the concerns in the proper way. I do not close the door, but I do not want to excite the noble Baroness's expectation that there is likely to be any further change.

Baroness Williams of Crosby: My Lords, in the hope that the Bill will not cease the process of being surveyed by this House completely, in the light of those remarks I will withdraw the amendment but my expectations continue to be relatively lively. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart: moved Amendment No. 42:
	Page 4, line 27, at end insert—
	"(9A) Nothing in this section or section 3 applies to the conveyance of signals in the course of, or in connection, with the provision of a common carrier service.
	(9B) In this Part "common carrier service" means an electronic communication service within the meaning of section 32 of the Communications Act 2003 (c. 21) (meaning of electronic communications network services) which consists of no more than the conveyance of signals."

Lord Goodhart: My Lords, this is the first of a group of four amendments. Apart from this one, all of them are amendments to Clause 3, and are basically concerned with the problems of Internet service providers and the extent to which they will be affected by this Bill. They divide into four groups because four different issues are involved. The first group, starting with Amendment No. 42, includes one minor government amendment which is concerned with making sure that the arrangements are not unduly oppressive to Internet service providers.
	The second group contains a very different set of amendments which are concerned with whether the service of notices to remove something from an Internet service provider's provision can properly be done simply by the decision of a policeman. The third group deals with a particular point of concern to Internet service providers—the Government's provisions here as to repeat statements. Finally, the last group concerns what falls within the definition of terrorist-related material.
	On the first group, starting with Amendment No. 42, it is probably fair to say that the Government's acceptance of the principle that there should be an intentional recklessness test to Clause 2 as well as Clause 1 will probably have reduced the concerns of Internet service providers. Unfortunately, owing to the late date at which the amendments were tabled, it has not been possible for me to have any detailed conversations with the representatives of the Internet service providers to see how far their problems have been resolved. However, I will now outline what the problems are.
	Internet service providers do not normally monitor or exercise control over the material which they transmit. There are some cases in which some degree of control is exercised; for example, there are a number of ways in which child pornography can be excluded. It would be very difficult, however, to apply those techniques to terrorist material because of the considerable differences in its nature. There are, for instance, going to be no obvious code words which clearly identify a terrorist message. Some degree of protection is given to Internet service providers by Articles 7 to 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implement directive 2000/31/EC. That protection should be preserved to avoid putting an impracticable burden on ISPs.
	Amendment No. 42 is slightly different from the rest of this group: it is an amendment to Clause 2 rather than Clause 3. It has been requested by British Telecom, which is a large provider of non-Internet communications services such as telephones. It is plainly wrong, when we are talking about transmission or dissemination of terrorist material, that telephone services, voice or fax, should be subject to the Bill. I hope that the Government will agree to that, because it seems obvious that there is no practical way in which they can do anything about it without imposing wholly unacceptable burdens on the telephone services.
	Amendment No. 44A has been requested by LINX, the London Internet Exchange, and the ISPA, the Internet Service Providers' Association. Internet service providers with multinational networks should not be expected to remove material from their network in another country without lawful authority in the jurisdiction where the removal would take place, because the Internet service provider might then have to choose between ignoring the notice served under Clause 3 by the police and facing prosecution in the UK, or complying with the notice and facing legal action, criminal or civil, in another country. That seems inappropriate, and I understand that it is the Government's intention that this should not apply to what is stored overseas. That should be made clear.
	The Electronic Commerce (EC Directive) Regulations give protection to three categories of Internet service, as defined in the regulations: first, an ISP which is acting as a mere conduit, covered by Regulation 17; secondly, an Internet service which is caching information, covered by Regulation 18; and thirdly, an Internet service provider which is hosting information, covered by Regulation 19.
	Caching and hosting both involve storage for more than a transient period, whereas acting as a mere conduit involves holding information only for a transient period. Under Regulation 17, no criminal penalty can be imposed on an ISP for any transmissions when it is acting as a mere conduit. That is repeated in Amendment No. 58, and would mean that an Internet service provider acting as a mere conduit would effectively be treated as we suggest that a telephone—common carrier—service would.
	Under the regulations, ISPs which provide caching or hosting services can be subject to a criminal sanction if they have "actual knowledge" that the material they are storing is unlawful and, upon obtaining that knowledge, do not act expeditiously to remove from the network, or block access to, that material. That is covered by Amendments Nos. 45 and 59. The regulations also apply to Internet service providers acting as mere conduits, but that is covered by Amendment No. 58 which totally excludes them from Clause 3, so there is some overlap here.
	The effect of these amendments upon ISPs other than those acting as mere conduits is to limit criminal liability to cases where notice has been served on them under Clause 3(2). Without this, there would be serious practical difficulties in deciding what constitutes "actual knowledge". It would therefore not be appropriate to provide that "actual knowledge", apart from the service of the notice, would in itself amount to an offence.
	This is obviously highly technical and rather complex material. I am by no means an Internet expert myself, but I hope that the Government will be able to lay to rest the concerns of the Internet service providers. I beg to move.

Baroness Scotland of Asthal: My Lords, I absolutely understand that the noble Lord, Lord Goodhart, speaks to his amendments with the assistance of the industry, and has not had an opportunity to discuss these amendments with them. Perhaps I can help by indicating the work that we have done with the industry on these matters. I hope that, if I am able to answer relatively fully, the noble Lord will have the assurances he needs and, therefore, the assurance that the industry needs to be content that we have addressed the problems that they have highlighted through him. I am grateful to the noble Lord for giving us the opportunity to do that.
	We believe that the concepts of intent and subjective recklessness in Clause 2 provide further protection to those service providers that simply act as hosts, transmitters and mere conduits of information, both in the fields of Internet service provision and connectivity services. This has been asked for by the Internet industry, and will go some way to alleviating their concerns, as the noble Lord generously indicated that it might.
	Amendment No. 42 is not accepted by the Government, because it provides an exemption for those conveying signals while providing common carrier services as defined under Section 32 of the Communications Act 2003. The possibility of issuing a notice, let alone prosecuting a common carrier is remote, but neither connectivity services nor Internet services providers can be totally exempted from liability to prosecution under the Bill. While it is unlikely, there may be circumstances where requiring a common carrier service to remove potentially criminal material might be needed. The Government believe it is reasonable that if a service provider is aware that it is making available a statement that is encouraging others to terrorism, or is making a publication available that encourages terrorism or is of use to terrorists, and either intends others to be encouraged by it or is reckless to the consequences of it remaining public and endorses the views in that statement, they ought to be prosecuted. The Government certainly do not believe that the vast majority of UK Internet or connectivity service providers will ever fall into that category, but we have to cater for the possibility of rogue UK providers being created in the future. We believe that the amendments to Clause 2 will do a great deal to resolve the anxieties of the Internet industry about the effect of that clause.
	Government Amendment No. 43 is a simple technical improvement which the Government hope provides greater clarity and certainty to the drafting. It changes Clause 3(1)(a) to ensure that it mirrors Clause 3(1)(b) by adding the words "or in connection with" when referring to services provided electronically. I hope noble Lords will agree that it improves the current drafting.
	Amendment No. 44A restricts Clause 3 preventing the issue of a notice under Clause 3 to people overseas who are committing the Clause 1 offence and to those committing conduct contrary to Clause 2 occurring only in the United Kingdom. It is pertinent to note that the Government do not intend to take extra-territorial jurisdiction over Clause 2; that is, where a person abroad commits conduct under Clause 2 and publishes that publication abroad. The United Kingdom does not criminalise that conduct. However, we are taking extra-territorial jurisdiction over Clause 1. This amendment would prevent a notice being issued to someone publishing offending statements overseas, so undermining our ability to enforce the Clause 1 offence. Further, the amendment would prevent a notice being issued to someone resident in Britain who the police knew to be causing another to post inflammatory material on a website hosted in another country. This would lead to a bizarre situation in which extremists and radicals in Britain would simply switch from hosting content in the UK, which few do currently anyway, to hosting it on foreign websites and no notice could be issued, even though it could be clear that the messages being placed on those websites are intended to be seen by Britons. The notice provisions ought to be able to apply to all those resident within the UK and to anyone anywhere who is committing the Clause 1 offence. Anything less would be wholly unsatisfactory and I am sure that the noble Lord can see the force in that.
	Amendments Nos. 45, 46 and 59 aim to ensure that Internet service providers do not face a prosecution unless they know about the content. This can only be taken to be the case following issuing the notice. I believe that these amendments tabled in Committee by the noble Lord are in direct response to the concerns raised by the London Internet Exchange Limited and linked to the Internet Service Providers Association, the ISPA. He indicated that today, too. I hope I am right in saying that with the inclusion of intent and recklessness in Clause 2, they are no longer necessary. Indeed, a most eminent and revered Member of this House who sits regularly on the Liberal Democrat Benches said,
	"so long as there is no intention test in Clause 2, we still need to ensure that Internet service providers are not subject to prosecution".—[Official Report, 7/12/05; col. 669.]
	I hope that the noble Lord, Lord Goodhart, will not mind me quoting his words back at him. He was quite clearly saying that the way to cure that mischief was to introduce intent into Clause 2. I respectfully agree with him, which is why we have done so.
	None the less, I am happy to give the noble Lord the assurance he needs. Both the offences in Clauses 1 and 2 cannot be committed if the service provider is not aware of the statement. The Government fully intend that where offending material is being hosted, the police and prosecutor's first step would be to identify the webmaster hosting that content and serve a notice on him. If that were to prove impractical or impossible, the police would look to serve notice on the Internet service provider, unless there were other circumstances surrounding an individual case; that is, that the provider had prior knowledge which presumably would not occur simply through his provision of the services. This would generally be the first time an Internet service provider could be said to be aware of the content. I should point out that even if the service provider had known of the statement and was deemed reckless as to the consequences of making that statement public, they would still have recourse to the defences in Clauses 1 and 2 that the statement neither expressed its views nor had its endorsement.
	Amendment No. 58 makes provision to ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protection in the electronic commerce EC directive regulations 2002 against criminal liability. The Government are aware that Internet service providers in the UK are concerned that provisions on repeat statements may contravene the e-commerce directive which requires that a general obligation to monitor cannot be placed on those service providers which fall within the terms of the directive. I will address this point in relation to government Amendment No. 51 and explain why we do not think that such an amendment is necessary. The Government's view remains the same: that the repeat statement provisions in Clause 3 do not impose a general obligation to monitor if that offends against the directive.
	I say to the noble Lord, Lord Goodhart, that no one would know that he was not an absolute expert in this field. I hope that in the light of what I have said on these amendments he will withdraw his amendment.

Lord Goodhart: My Lords, I am grateful to the Minister for her response and for quoting me back at myself. However, I suspect that I made that comment on the basis that it would be a purely intent provision in Clause 2 rather than intent or recklessness. Be that as it may, I shall need to consult further with interested parties in the light of the new provisions in the Bill and of what the Minister has just said. I hope that the ISPs and BT will feel that their complaints have been met, but in case they say that that is not the case and if I feel that their problems have not adequately been solved, I might have to bring this proposal back. In the mean time, I am happy to beg leave to withdraw Amendment No. 42.

Amendment, by leave, withdrawn.
	Clause 3 [Application of ss. 1 and 2 to internet activity etc.]:

Baroness Scotland of Asthal: moved Amendments Nos. 43 and 44:
	Page 5, line 4, after "of" insert ", or in connection with,"
	Page 5, line 6, leave out "2(1)(a) to (f)" and insert "2(1A)"
	On Question, amendments agreed to.
	[Amendments Nos. 44A to 46 not moved.]

Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

Council Housing

Baroness Scott of Needham Market: rose to ask Her Majesty's Government what plans they have for the future of council housing.
	My Lords, first, I thank all noble Lords who are participating in the debate. It seems that once again housing is becoming a major political issue. To their credit, the Government have done a great deal to tackle rough sleeping, but that is just a small, although highly visible, part of the problem. For many people, the misery of living in temporary accommodation, in overcrowded or unsuitable conditions, is a daily reality. There are also those who live with the constant worry of rising rents or overly ambitious mortgage payments.
	The Government's housing policy is now clearly biased toward affordable housing for purchase and not social housing for rent—that point will be made in more detail by my noble friend Lord Oakeshott when he sums up. However, this is not just a preoccupation of the Liberal Democratic Benches: in an article in Inside Housing in May 2005, it was reported that Shelter is very concerned about decisions made by Ministers in 2003 to tilt the balance toward intermediate and key worker housing at the expense of social housing for rent.
	This evening's debate is about one key area of social rented housing—that provided by the local authorities in this country. There are some 3 million council tenants in the UK. The Audit Commission estimates that around 12 per cent of households live in council properties. ODPM figures in 2002 estimated the value of the stock at over £100 billion. It was estimated that 100,000 of those homes were in need of urgent improvement, at a cost of around £19 billion.
	Since 1988, all governments have promoted what is, in effect, the privatisation of council housing. The financial playing field has been tipped to ensure that the only way to get additional investment to tackle repairs and improvements has been to require tenants to accept one of three options: stock transfer, PFI or an arm's-length management organisation. At no point in the process of moving public financial support and funding from council housing to the housing association sector has there been any real public debate on the matter.
	The present housing finance system discriminates against local authorities in three main ways: first, the Government siphon off rental income and capital receipts from councils but not from housing associations; secondly, the Government write off overhanging debt when stock is transferred, but not for local authorities that want to keep their stock; and, thirdly, if the stock is in poor condition and has a negative valuation, the Government pay a dowry to subsidise the transfer, but will not give any sum to councils to improve that stock. Also, funds are available to ALMOs that are not available to those authorities that wish to keep the management of their housing in-house.
	In short, housing stock that was built and improved over the years at public expense is being transferred to registered social landlords with the historic debt being transferred back to the public purse through national government. In 2003, the National Audit Office showed that for each house transferred the public pay an extra £1,300 in subsidy. If the historic debt for council houses could be written off, as it is in stock transfer, councils could invest that money in improving existing stock and building new stock.
	The Government spend public money subsidising the two other options: arm's-length management organisations and PFI. Councils opting for PFI receive credits from the Government to pay to a private company not only to cover the capital and interest costs of private borrowing, but to reflect the higher costs of private investors and the fact that they have to make a profit. The payback for the Treasury is that that takes the borrowing off the balance sheet. However, these schemes are proving increasingly difficult and unpopular in local authorities. The Chartered Institute of Housing has noted that:
	"Most councils simply don't have the capacity to deal with such complexity".
	What is the experience of tenants after their stock has been transferred? It is usual to offer a five-year rent guarantee, but that does not apply to new tenants and a home that has been renovated or significantly improved can be subject to higher rents. The National Audit Office has shown that 17 per cent of transfer associations have broken their rent guarantees, so it is no wonder that tenants are sceptical about promises that are made to them during the debates and campaigns on stock transfer. Fifteen out of the 20 fastest-increasing housing association rents are in districts which have undergone large-scale housing transfer.
	There is also a huge loss of localism. Councillors are now unable to respond to tenants' requests in a meaningful way, which is a source of frustration to councillors, who wish to be responsive to constituents' problems and, of course, to the tenants themselves. There is also a potential loss of synergy between housing and other related sectors, such as education and social services, once housing is moved out of the local authority sector.
	Housing associations are now going through a period of consolidation and merger. As they get bigger and more remote, tenants lose still further the sense of local accountability. In many cases, the new registered social landlord is not bound by the promises that were made to the tenants on the original transfer, as was highlighted in an article in Housing Today this month. Tenant involvement is not what it seems: where tenants are on the board, they discover that their legal obligations are to the registered social landlord and not to the tenants, which was a point made very clearly by the Audit Commission in its report Improving Services Through Resident Involvement. A number of studies have shown that there has been no significant improvement in tenant satisfaction with the new regime, despite all the money that has been thrown at it.
	We have to wonder what on earth is behind all this. It is not as if the Government can argue that council housing requires a massive public subsidy. In fact, as I shall show, the situation is quite the reverse. In 2003-04, right-to-buy receipts were £2 billion. Councils kept £0.7 billion and the Government gave them back another £0.7 billion for housing investment, so the Government kept £0.5 billion. That is something of an improvement since 1997 because, until then, councils could not use right-to-buy receipts at all unless they were debt-free.
	Currently, many councils are investing right-to-buy receipts in non-housing projects. For example, Tower Hamlets has used £100 million in the past decade for IT projects and a new civic centre. On these Benches, we would be the first to say that councils should be free to invest where they wish. However, it is clearly not the case that taxpayers are in any way subsidising council house dwellers—quite the reverse. The same is true on the revenue side. Councils are legally obliged to ring-fence the housing revenue account and cannot use the general fund to subsidise housing, but they can, and often do, do it the other way round. In 2003–04, council house tenants paid an average of £2,650 in rent and received £1,773 in services. The Audit Commission notes that as council house rents increase and become equal to those of housing associations, the subsidy system will further redistribute revenue on a national basis, thus weakening still further the landlord-tenant relationship.
	Despite this negative subsidy, the fact is that, on the whole, tenants prefer to remain in local authority stewardship. Of the 360 local authorities that owned property in 1988, 136 have transferred their stock and 224 have retained their homes. This is despite the financial incentives given by the Government. In my own county of Suffolk, a ballot will be held on council housing in the Lowestoft area. Many tenants, supported by their Labour MP, oppose stock transfer. They do not understand why this Government are prepared to give £11 million extra for improvement to their houses if they transfer.
	Many authorities that gave evidence to the House of Commons Select Committee said that they had pursued stock transfer only as a means of reaching the decent homes standard. Given the antipathy among tenants towards stock transfer, the Government will have to reconsider how they will bring these homes up to standard without stock transfer. Otherwise, they will be consigning many thousands of people to houses which do not meet the decent homes standard. The Government are blackmailing tenants into accepting either landlords that they do not want or deteriorating living conditions. For a Government who are committed to reinvigorating local democracy, that is an extraordinary state of affairs. For this Government, choice is said to be a key element in public service reform, so I beg them to allow council tenants to have that choice.

Lord Whitty: My Lords, I welcome the debate initiated by the noble Baroness, Lady Scott. I regret to tell my Front-Bench colleagues that I largely agree with her speech. While the Minister will know that I am normally convinced by the Government's arguments, at least to the extent of voting for them, I find it very difficult in relation to housing. This debate will perhaps allow us to clarify the Government's long-term thinking on council and social housing.
	On the one hand, we have clear and desirable government commitments and objectives on sustainable communities, affordable housing, the rights and involvement of tenants and lessees and key worker provision, as well as a substantial programme of refurbishment and decent homes, on which the Government are to be congratulated. The Government also have strong general policies on tackling poverty, on reducing the dependency on social security, on choice and on more flexibility for local authorities. Yet our housing policy seems to cut across all those objectives. The likely outcome, particularly in inner cities and rural areas, is a deep polarisation of our communities and housing provision.
	The need for social housing, even in an era of high levels of property ownership, is self-evident. Even if we approach the 80 per cent target which the Government have set, there are still substantial numbers of people needing rented accommodation at some time in their lives. In any case, how can they get into home-owning given today's house prices? Roughly speaking, average house prices across England and Wales are seven times average income. In areas of housing stress, the figure is much greater than that. In Kensington and Chelsea, as the noble Baroness, Lady Hanham, will know, it is 24 times the average income. In rural areas such as West Devon, it is 13 times the average income; in the Cotswolds, again, it is 24 times the average income. There is no way that the ordinary working family can get into housing on that basis. In those rural and inner-city areas, private rents are two or two and a half times the level of council rents. We therefore need affordable social housing, yet the implication of Government actions in relation to council housing cuts across that.
	We all know that local authorities are not always the best landowners, but there are also many good local authorities. Their stock is, by and large, well built and has, for many decades, been the main source of affordable housing. Now, Government policy seems to be fourfold: first, to have no new build in council housing; secondly, as the noble Baroness said, to get as much across into private ownership or management as possible; thirdly, to raise rents closer to market levels; and, fourthly, to cap the ability of tenants to buy their way out by buying their own homes. The outcomes are no affordability, little flexibility, the end, ultimately, of mixed neighbourhoods, tenants and lessees having fewer rights to involvement than they had with local authority housing, either through ALMOs or private stock transfer landlords, and local authorities with fewer levers to meet housing need.
	On the building front, there was a time when we built over 100,000 new council houses per year. Last year, we built just 131. The shortfall is not made up by RSLs, despite the inducements for them to build. The RSLs now build 22,000, whereas as late as 1990 they, together with local authorities, built 35,000. Do the Government really intend that there will never again be local authority new build?
	Why is there a shift of stock in so many areas away from local authority management and ownership, wherever possible? There are bad local authority landlords, but is not clear to me, to put it mildly, that alternative ownership is invariably beneficial or that alternative management gives the tenants or lessees any more rights than they had under local authorities. In many cases, despite some good ALMOs, the reality has proved to be that the degree of involvement is significantly less. The noble Baroness has gone through the economic absurdity of these arrangements and why the Government are pressing local authorities and their tenants to opt for a private sector solution. In many ways, that does not seem acceptable to the tenants themselves. It certainly undermines the role of local authorities.
	On affordability, I spoke in the debate that was initiated by the noble Baroness on the rent restructuring programme. The rent restructuring formula is designed to take into account average incomes, property values and private rents, to equalise RSL and local authority rents. In the long run, the net effect will be that, in inner cities and rural areas with housing stress—certainly for new tenancies, since existing tenancies are partly cushioned—only people on housing benefit will actually be able to live in council housing. There will be no key workers and no families just above the poverty line. Only the very rich or the very poor will be able to live in either our inner cities or desirable country areas. Can the Government not stop or, at least, slow down that process of rent restructuring and assess the degree to which we are moving to that social calamity?
	Policy on social housing ought to offset the failures of the market, not reproduce them. It seems that the policy is partly due to a regrettable centralising tendency by governments of both persuasions to take more and more responsibility, power and assets away from local authorities because a few of them are failing badly. I would be greatly reassured if the Minister could indicate that that is not in fact the policy objective and that the outcome of social housing policy will, indeed, be to continue a strong social housing sector in which council housing and the role of local authorities in assessing their own housing needs in the light of local housing circumstances are the dominant theme.

Lord Best: My Lords, I am grateful to the noble Baroness, Lady Scott, for once again raising the profile of housing. I declare interests as director of the Joseph Rowntree Foundation and the Joseph Rowntree Housing Trust, as president of the Local Government Association, as chair of the Westminster Housing Commission and as a member of the independent commission on the future of Birmingham council housing.
	Although I will say something about the ownership by local authorities of rented housing, I make it clear that I do not see the question as the most critical issue in UK housing policy. Of greater significance, for example, is the fact that the output of affordable homes through all not-for-profit agencies—that is, local authorities and housing associations put together—is now at its lowest level for 80 years.
	Nevertheless, the transfer of ownership of about 1 million council homes, alongside the transferred management of nearly a million more, is an important phenomenon—the biggest example in the UK of a shift in public service provision to the voluntary sector. It is right to ask, therefore, whether that really modernises public services by bringing in the pluralism, competition, variety, innovation and flexibility that it promises. Does it really directly engage more citizens and communities in the process of service delivery? Also, are there lessons here for the possible transfer of other public services?
	On the policy's success, John Perry of the Chartered Institute of Housing reports in the UK Housing Review 2005–06 that repeated surveys show that levels of tenant satisfaction are much higher and performance levels much improved where management is transferred. An analysis of stock transfer housing associations by Hal Pawson and Cathie Fancy at Heriot-Watt University in 2003 concluded:
	"The transfer process has tended to have a liberating effect on housing staff with the move to a more inclusive culture in which individual initiative is encouraged".
	This JRF report also found that transfer often triggers genuine change in organisational ethos, summarised by staff interviewees in their case studies as replacing a no culture with a yes culture. The report said that the step change in available investment resources, the increased control over organisational destiny and an increased freedom from local authority constraints underpin this transformation.
	Meanwhile, although the halfway house of the arm's-length management organisation has been unable to access extra funds from private lenders, because its borrowing counts toward public sector debt—one of the EU stability pact measures—it has still proved a popular option. Looking at the work of Westminster City Council, which has taken this route, I have been impressed to see how the local authority can then concentrate on its more comprehensive housing role—in relation to homeless families, tenants in the private sector, elderly home owners and the rest—rather than on day-to-day management of the council stock.
	That model of public service provision differs greatly from privatisation, since the assets are retained for ever for social purposes and are not owned by shareholders for private gain. I argued fiercely about social housing grant being made available to house builders and developers during the passage of the Housing Act 2004, since those bodies are ill suited to providing high standards of rented housing and long-term caring housing management.
	But what of the problem where, even if the local authority itself is keen on a transfer, council tenants are suspicious of the idea, vote against it and, as things stand, thereby cut themselves off from the funding and the potential benefits that could follow? This was the case in Birmingham, where an independent commission, chaired by Professor Anne Power—a longstanding campaigner for more tenant participation and control—has proposed an alternative to the one-size-fits-all transfer of the whole stock to a single new entity. Given the chance, some of Birmingham's 75,000 tenants might vote for a transfer of their estate into new ownership, particularly if it needs a good deal spent on it; others might vote for a continuation of the status quo where they feel the service is of a good standard; and others might go—where the Audit Commission establishes that management is better than for the stock as a whole—for the halfway house of the ALMO. Partial transfer has worked well in Liverpool, Manchester and elsewhere and I have hesitations about the transfer of the whole stock of any major council to just one new landlord.
	The future for those living in the homes built by local authorities can be transformed through the transfer route, but I hope that in the next stage of this important process further refinements to the arrangements will be possible to help with partial transfers and for large authorities to ensure transfer to more than one body.

Lord Bradshaw: My Lords, council housing—or public sector housing—was conceived from high ideals. I remember being taken to Hemel Hempstead from school and seeing the first centre in Hemel Hempstead being developed. I remember going to New Addington, outside Croydon, where two of my uncles, who had returned from the campaign in Burma, were allocated new council houses. These were times when there was a kind of pride in housing, where people talked about public housing with real commitment. They were days of hope and optimism. They were, admittedly, days before the motor car, the supermarket and television. But management of public housing went into steady decline—I do not think many people will argue with that—and there are probably many reasons for it.
	On top of that came the right to buy and the sell-off of new towns, which was probably one of the worst things that happened in many respects. The best properties were, of course, sold far too cheaply and years of mean local government finance have led to a rump of council property which is badly maintained, as other noble Lords have mentioned, and hard to let. Social housing—mainly owned by housing associations—is poked into the unattractive corners of sites, overlooking the gasworks or railway sidings, while the best parts of sites are, of course, allocated to people to whom houses can be sold at high prices.
	The vision, the enthusiasm and the management skills may have gone but the demand for housing that people can afford is very high, especially in the south-east, again an issue to which other noble Lords have referred. My first question for the noble Baroness is this: are the solutions promised by the Government at places such as Ashford, Thames Gateway and Milton Keynes likely to consist of anything imaginative or inspiring, as were the early new towns, or will they be vast tracks of houses which have been built as cheaply as possible?
	My first call on the Government is to put some oomph into the management of public sector housing. My second call is for them to recognise that the question of affordable housing is much larger than the narrow social issue. We have had many examples quoted from many parts of the country where two-thirds or 80 per cent of aspiring home owners are being excluded from the market. Is it not time to bring this to an end and to replace the right to buy with a right to invest some money but not to own the property?
	What about the decent homes standard? Does it really achieve a good, well insulated, secure home, or does it mean a huge outlay for councils in attending to a few cosmetic features, such as new bathrooms in houses where the bathrooms are over 30 years old? That will not go to the root of any problem. The problems are much more deep-seated than can be attended to by any form of cosmetic treatment. Housing needs to be, as it were, brought out of the doldrums to become the kind of subject to which good people apply their brains, drive and initiative. One feels that housing is not in that league any more.
	I suggest that we need car-free settlements, properly policed, where children can play and nuisance neighbours are firmly dealt with; where many types of property are mixed in and access to leisure facilities is by public transport which is fit for all to use, with obviously a suitable car available for rent when needed. We need properties which are well heated and well insulated against noise. We need a new generation of the Parker-Morris standards, updated to meet modern standards, so that the buildings we build really are well built, not built as cheaply as possible so that we can cram the maximum number of people into the minimum space. We need sites which are imaginatively planned and managed where residents feel part of a new community. That may seem old-fashioned, but it is the way back.
	As we have heard, much of the Government's thinking is dominated by financial considerations—obviously all their thinking is bound to be influenced by them to some extent—but where is the vision? Who will build the new Jerusalem of housing fit for people to live healthy and fulfilling lives? People expect this of a Labour Government, but given the large numbers of council houses where I live—and, indeed, wherever I look in the country—I believe they are largely hoping in vain.

Lord Greaves: My Lords, I remind the House that I am a member of Pendle Borough Council, which is a housing authority. It still has its housing stock but is at the moment in the process of balloting its tenants on a large-scale housing transfer to a registered social landlord, which will be called Housing Pendle. I remind the House of that because I want to fill in the information that my noble friend Lady Scott gave about the way in which councils are being bullied and bribed into doing this from my local knowledge.
	The history of housing in Pendle is that we had 5,500 council houses 35 years ago when I was chairman of the housing committee; we now have 3,500. Over many of those years there has been a history of considerable investment in the housing; the housing is still in good condition and there is high tenant satisfaction. But things are changing. In the discussions over whether to carry out this transfer I was not in favour but my counsels did not prevail. I understand why.
	The so-called negative housing subsidy which has existed since 1990 has taken something like £14 million away from Pendle to central government. As to the right-to-buy proceeds that my noble friend mentioned, at the moment 25 per cent of proceeds are kept by the council and 75 per cent go to central government. The major repairs allowance decreed by central government each year is nowhere near adequate to maintain the houses now and to bring them to the decent homes standard. Indeed, it is considerably less than we would put into the houses if we still had control over rents and the finances. In the words of the council's director of services, the council is being cleaned out by the Government.
	Then there is the other side, which is, frankly, blatant bribery. If the stock transfer goes ahead in Pendle there will be repayment of something called "notional housing debt". I do not explain any of these things; I just say what they are called and tell you what the outcomes are, because they are arcane, to put it mildly. The repayment of notional housing debt will leave Pendle council £500,000 per annum better off on its general revenue account—extraordinary. There is a promise of a dowry of up to £15 million over five years to the new housing association, which otherwise will not be available.
	Right-to-buy proceeds will be kept in Pendle in total; part will go to the new housing association. An estimated £3 million will probably go the council, which is no longer the housing authority, over the next five years. Something called the VAT shelter, about which noble Lords may know more than me, means that if the amount spent on the stock in the next five years following transfer is, as expected, around £45 million, there could be a £7.5 million VAT windfall, which again will be shared equally between the housing association and the local authority. This is all quite extraordinary—Alice in Wonderland—but it appears to be a fact. Rent arrears, which at the moment total around £200,000, would be paid by Housing Pendle to the local authority, so the local authority general fund will get a £200,000 windfall from its existing housing arrears—again, quite extraordinary, but it is the fact.
	In addition to that, Housing Pendle, the new housing association, will have unrestricted rights of borrowing and, because of local circumstances and the deal that is being done with another housing association in Blackburn, will be at less than public workers' loan board rates. Altogether, this adds up to a likely investment in council housing in Pendle of £45 million over the next five years. The estimate of what the council itself, within present rules, can possibly afford, or will be allowed to spend, is around £10 million. Ask the tenants whether they are going to vote for a transfer or not; they would, frankly be quite stupid not to do so. All these outcomes are not the results of any natural laws or anything like that; they are a direct result of central government policy, which, as my noble friend said, will actually cost the public purse generally more than it would otherwise, because the council itself is quite unable to make the investment it would like to in housing.
	It also means that Pendle Borough Council is likely to get a windfall, towards its general revenue account and general expenditure, of something like £20 million over five years for transferring its housing to a housing association. This money will not go to housing; it will go to the general revenue account. This is a council whose annual revenue account is at around £13 million. It feels like Christmas in one sense, but it also makes me very sad that a council that has looked after its housing, and has the support of its tenants, is being put in this position.
	In addition to this we have the penalty imposed on the council for not winning the ballot. If the ballot goes the right way, the costs of all the publicity and planning are paid by central government. If the tenants decide they do not want it after all and vote against a transfer, something like £100,000 will have to be found out of the general fund, from the council tax payers in Pendle, because the tenants voted the wrong way. The whole thing seems to me to be vote-rigging on an astonishing scale. There may be arguments for and arguments against, but it is not a level playing field and the whole system, in my view, is rigged. It is blatant bribery and the Government really should be ashamed of the way in which this is being done.

Lord Oakeshott of Seagrove Bay: My Lords, I am going to start—basically because he has stolen quite a lot of my speech and I pay tribute to him for that—with the speech of the noble Lord, Lord Whitty. He gave us a frankly devastating account of why—if I may sum up his analysis—housing is the black hole at the heart of new Labour's social policy. That speech should get the widest possible circulation, and I will be commending it warmly to the Liberal Democrat press office in the morning. I say, "Come and join us". My noble friends Lady Scott and Lord Greaves made powerful speeches based on facts and their own deep knowledge of how councils actually work. This House is lucky to have their expertise, and the Minister should take their criticisms, and those of her noble friend Lord Whitty, very seriously indeed.
	The Government have bought Kate Barker's fatally flawed analysis of housing affordability and what drives house prices, but they and she miss the key point. Between 150,000 and 200,000 new houses for sale have been completed every year since the 1950s. That total has been very stable over the past 20 years. The flow of new social housing bought for rent by the public sector is now down to a pathetic trickle. In 1996–97 when the Government came to power, registered social landlords and local authorities completed 32,489 permanent dwellings. Last year it was down by one-third to 22,823. It was running at around 150,000 each year as recently as the late 1970s, certainly well within my working memory when I was on Oxford City Council's housing committee and was standing for Parliament in the new town of Crawley. As the noble Lord, Lord Best, pointed out, total housing completions today are at the same level as in the 1920s, and barely half the level of the 1970s.
	If we are serious about tackling homelessness and housing crises in the high stress areas of London and south-east England in particular, we must deliver far more affordable housing directly at the point of need. Of course increasing supply ultimately affects price, but so does reducing excess demand. There is not a shred of evidence that spraying estates of new executive boxes at £250,000 or £500,000 a time all over the green belts and flood plains of southern England will house key workers for our creaking public services or reduce the rate of house prices over the long haul. Barker's key mistake is to assume that only building new homes for sale reduces house price growth.
	Building new social housing meets housing demand more directly. Much of the upward pressure on house prices comes from people being forced deep into debt to buy because they can find nothing to rent. No surprise there, of course, because new affordable housing has dried up and so much social housing has been sold off since 1979. My noble friend Lord Bradshaw made that point particularly strongly, with the expertise and commitment he always brings to this House.
	Even with her unhealthy concentration on house building for sale, Barker still says that there is a shortfall of between 17,000 and 23,000 a year in new social housing completions. But the Government are building only 10,000 a year more and, in their Pre-Budget Report response in December, they made it clear that the homeless will have to wait until the 2007 Comprehensive Spending Review before there is any increase even in that miserable figure. Frankly, the Government's so-called market affordability goal for house prices is far too vague. It will not work and it does not deal with the real problems of affordable housing to rent, not just to buy, and homelessness.
	I conclude by giving two figures of which the Government should be ashamed. Some 128,000 households were accepted as homeless and in priority need in 2004. That is an increase of a quarter over the Tories' last year in office. Households in temporary accommodation in England have doubled from 45,000 in 1997 to 101,000 today.
	The Government have decided that it is not sufficient to have a roof over our head, but we must own it. Why is there choice, Tony Blair's holy grail, in every vital service except housing?

Baroness Hanham: My Lords, while I thank the noble Baroness, Lady Scott of Needham Market, for her Question, the short answer should be "None". It has long been the policy of governments of both parties to reduce the direct responsibility of local councils for the provision and management of housing. The direct encouragement to transfer ownership of housing estates, either to housing associations or arm's-length management organisations, run externally or by the tenants, was a policy started by the Conservative government as far back as 1988 and embraced by this Government.
	I declare my interest in this matter, as a member of a London local authority—the Royal Borough of Kensington and Chelsea—and as a former chairman of a housing committee. My council was one of the innovators of the development of relationships between the council and its tenants and their involvement in the day-to-day management of their homes. It formed one of the first tenant management organisations in the country, which became responsible for the entire council housing stock well in advance of the establishment of arm's-length management organisations; it has now become one. It has, subsequently, been successful in benefiting from grants to meet the decent homes standard. Other investment has enabled considerable improvements to be made to the properties. That investment was simply not available to local councils in anything like the sums needed to maintain individual properties and estates to an acceptable standard. Tenants are now in charge of the management of their homes and are able to make significant decisions on their future.
	The reason why, in my council, the management was initially carried out by a tenants' management organisation rather than through a large-scale voluntary transfer was because of the point made by the noble Baroness, Lady Scott—the tenants' reluctance to lose their relationship with the council. That factor has been prayed in aid by others outside with regard to having a fourth option to the Sustainable Communities Plan of maintaining council ownership. When an ALMO was ultimately formed, council input was maintained, and still is, by the presence of councils and by tenants on the ALMO board.
	While the noble Baroness, Lady Scott, is encouraging when it comes to council-owned housing, time has moved on. We need to see how policies can be developed which enable people to be individually more in control of the property they inhabit—the breaking up of large estates, much wider use of shared ownership, the return to greater provision, and possibly the expansion of some form of right to buy, which was disgracefully and dramatically curtailed by the Deputy Prime Minister.
	As the noble Baroness, Lady Scott, said, the 2003 sustainable communities strategy contained three points. But the retention and management of local authorities' stock, as a fourth option, seems somewhat redundant in the face of the Government's policies. There is little financial support available to local authorities to provide council housing and/or to renew and maintain their stock. Despite what the noble Lord, Lord Whitty, said, much council housing was of extremely poor quality, and the design of many estates was dreadful. The difficulty of management and the lack of choice for tenants—historically the problems associated with council-run housing—do not seem likely to be reversed.
	The aspirations for a return to the glory days of universal council housing provision are, I believe, misplaced. What is not misplaced, however, is any concern over the role that local authorities must and should play in ensuring that housing provision in their areas fulfils the requirements for housing their communities. The government policy—one upheld in the Barker report, which I presume we shall have an opportunity to discuss at some stage—of leaving regional bodies to decide on the number and siting of such developments is simply not the answer. Decisions need to be made by local authorities themselves: those who are responsible to their electors and who have the responsibility for leading their own communities.
	Having said that, even with the extension of the ownership and providers of affordable housing, the policies being espoused under the Government's sustainable community plans for the building of hundreds of thousands of new homes—encouraged by Kate Barker again in her report—raises enormous questions about how to ensure that this housing does not fall into the trap of former times. While we are urged to build at high density and on brownfield sites, it is clear that, by and large, people do not want to live crammed together in high-density estates; that despite many pious words uttered in innumerable debates, the infrastructure for both social and private developments being carried out under the sustainable community plans is far from adequate and in many cases is simply not there—in relation to schools, shops, hospitals, roads and so on. Local authorities need to ensure that that is provided.
	There is widespread concern about the amount, affordability, siting and design of accommodation to meet future needs. Tonight's debate has centred on some of these but there is much more to discuss and consider before irrevocable decisions are made. But those decisions must allow for the widest possible choice. I take up the point raised by the noble Lord, Lord Oakeshott. Choice does not seem to figure strongly in housing; and it must. The choice of tenure and ownership, and options for both, need to be on the table. I go back to all the words about localism. Local authorities need to be closely involved even if they do not themselves directly provide the housing.

Baroness Andrews: My Lords, it has been, predictably, an interesting debate for many reasons. It is good to see the Liberal Democrats turning out in force to support the attack on the Government, aided by my noble friend Lord Whitty. I am sure that is because he has a bad cold: my noble friend is usually more gentle with the Government. It is a welcome debate because it gives me an opportunity to put some minds at rest and to address some of the questions. Those were summed up by the question asked by the noble Lord, Lord Bradshaw: where is the vision? In some quarters, the language has been a little exaggerated but I know it reflects the passion that people feel about such an important area of social policy to which we all have a long-standing commitment. I was grateful for some of the wise words of the noble Lord, Lord Best. I shall come to them. All the contributions have been illuminating in different ways. I may not be able to answer some of the technical issues on housing finance. The example of Pendle was interesting although I drew different conclusions from those offered by the noble Lord. I shall write to noble Lords if I am unable to answer all the questions.
	This is an opportunity for me to restate some fundamental principles. Choice and affordability of housing are essential. We have a national policy for housing but ultimately housing is a personal choice. Our duty must be to provide the widest possible range of choices. Because it is "right to buy", it is not wrong to rent. We must never forget that we have a duty to meet the fact that not everyone who wants to own a home can afford it. We have a duty to ensure that there is a stock of affordable housing to meet the needs of those who are disadvantaged—the young, disabled, those on low incomes, the impoverished, elderly and those who find themselves suddenly without a home.
	We believe that there is a place for publicly financed housing where the market does not deliver because that secures so many other benefits, not least health. We know that over the past century housing has been the largest contributor to improved public health. For all those reasons, a government would be seriously derelict in their duty if they denied that they had a duty to provide social housing on the scale and in the ways needed.
	We are investing more in housing and social housing than ever before. I agree with those who said that one of the challenges is to make housing policy as important, visible and sexy as all the other aspects of social housing to which the Government are committed. Indeed, they are. That is what my department is doing. Our commitment to housing is demonstrated by the fact that we have tripled total capital investment from £1.9 billion in 1997–98 to £5.5 billion in 2007–08, with £3.9 billion going into new social housing. Many noble Lords set out in graphic language what they think are the challenges, but we have focused on three sets of solutions because they are the most effective and they are what we needed to do. The first of them has been to tackle and prevent shortages of homes by maintaining and sustaining the stock which we inherited in 1997—the cost/benefits of quality—and providing decent and better homes, and, in doing so, opening up new possibilities for whole communities in ways which I shall describe. Secondly, we have increased the supply of social housing in many parts of the country. I hope that I can put an end to the idea that we do not recognise the importance of new build in its many forms. We have offered greater choice and mobility. We have put all that, as did the noble Baroness, Lady Hanham, in the context of the great challenge of meeting demographic pressures on housing and doing something about the increasing gap between earnings and affordability of housing, as we are trying to do through our response to the Barker report.
	The first challenge was to get the best out of our existing housing stock. When we came into office, we were faced with a bill of £19 billion for the backlog of repairs. Two million social homes did not meet the basic standards of decency. That challenge required us to change the landscape and invent some new ways of doing things. We did it for a very good reason and it has delivered results. Since 1997, councils and registered social landlords have been able to invest more than £21 billion in their stock and there are 1 million fewer non-decent homes. With the work done and the plans in place, we can go 90 per cent of the way towards meeting our decent homes target.
	Far from being ashamed of that, I think that that is a record of which we should be absolutely proud. I would ask noble Lords—it is a parody of privatisation—what they would say to tenants who were left without bathrooms, kitchens, decent heating, a decent roof and paying high energy bills. Would they say, "Frankly, we would prefer you to be like that, rather than find some ways of raising additional money so that we can make a decent home for you"? We are now focusing our efforts on dealing with the last 10 per cent of non-decent social homes. We will come back to the House in the coming months with an announcement about the way forward for the decent homes programme.
	In some ways, I do not recognise the noble Baroness's gloomy assessment of how tenants respond. By way of the decent homes programme, we are able to anticipate ways of dealing with some of the most deprived and depressed areas of the country because we can ensure that the programme brings with it better access to a social mix and diversity of housing types. We are in the middle of a series of demonstration projects in areas such as Manchester, Leeds and east London which bring together housing and renewal strategies with a mix of tenures that will create a much more vibrant, mixed community. By dealing with housing as a social opportunity, we will tackle the issues and challenges of worklessness and crime.
	We have made that progress because we have been able to raise the resources. We have levered in an extra £6.7 billion through the arrangements we have made. The reason for our decision was not to undermine or bribe local authorities or to manipulate tenants and put them in a weaker position by reducing their rights, but to make sure that we could raise more money, modernise more homes and make their lives better.
	I recognise that some people have argued, and continue to argue, that we should make the same resources available to local authorities as are available to us through stock transfer. Along with the other suggestions that have been made about how we could change the way we finance council housing, the problem is the impact on public expenditure. Public borrowing is limited; we cannot take risks with the economy. As the noble Baroness, Lady Hanham, was saying, since 2003 we have seen terrific progress. Since 2003 virtually all local authorities have decided how they can best deliver decent homes: 185 have transferred or decided to transfer; 59 have decided to set up an ALMO; nine have decided to take a mixed approach; 98 have said they will retain the management. Only three authorities have yet to submit an options appraisal, and we are in close dialogue with them.
	Turning from that to our other big challenge—to build new homes—we have had significant success in the reduction of the most acute forms of homelessness: a 75 per cent reduction in rough sleeping, the end of bed and breakfast accommodation for homeless families, and the number of households living in temporary accommodation has remained stable since September 2004. I agree with the noble Lord, Lord Oakeshott, that there is a lot to do, but we have got some way towards removing the worst abuses. The noble Lord was right when he referred to Barker. Barker set us a challenge to build more affordable homes and we have made a start. We started with the Comprehensive Spending Review of 2004. We are committed to providing 75,000 new social homes for rent in the next three years to 2007. That incorporates a 50 per cent increase. We will do that because the RSLs themselves are more efficient. We will do more, which is why in the next spending review we are committed to setting out more ambitious plans. We have to wait for those, but I assure noble Lords that the commitment is there.
	In this context, we strongly believe—I say this to my noble friend—that local authorities have a critical and strategic role to play in planning housing investment. They must meet need and aspiration. Housing authorities which are simply there for the homeless cannot plan for everyone. They have to meet their responsibilities across the housing sector. David Miliband has made that quite clear. They also continue to be important; the owners and managers of homes in a mixed economy and mixed, sustainable community.
	Alongside that, in the interim—again in response to Barker—we are looking at a range of innovations as to how we can encourage the supply of social housing in the short and medium term, not least through the modification of private finance housing schemes. For example, a move towards demolitions means we can use extra space to provide additional units. We are looking at the possibility of allowing councils with ALMOs to build homes which the ALMOs will own and manage; for example, in Hounslow. In addition, we are looking at innovative ways in which excellent councils with good housing services can build new homes for rent. We are looking at ways in which housing benefit subsidies can be used to finance borrowing to purchase temporary accommodation and social housing. There is a whole raft of things to consult on. I hope that noble Lords will come forward with their ideas because that is extremely important. I am grateful in this context for the debate we had across the Chamber about how tenants responded to transfer. The evidence provided by the noble Lord, Lord Best, was compelling. I hope that noble Lords took note of that.
	In terms of the rural areas to which my noble friend referred, we are aware, which is why we set up the Affordable Rural Housing Commission, of the challenge of providing a balance of housing in rural areas to keep the rural economy alive and to meet local needs for affordability. Again, when we talk of expanding choice, we are looking at a whole range of new initiatives such as the choice-based letting schemes so that we can develop the choice and power of tenants, and not only in the council sector. We are obviously concerned about tenants in the RSL sector as well. We take that seriously.
	To conclude, going back to the point made by the noble Lord, Lord Bradshaw, and picked up by the noble Baroness, Lady Hanham, our task is not simply to provide social housing. We must grow the communities of the future. Yes, we will avoid the mistakes of the past and we will build sustainably. We will not build homes, we will build communities. That means building public realm, and taking that public realm as trust, which means that we have the highest quality design. High densities do not always make for poor design; think of the Italian piazza, for example. But that is our duty and that is the challenge, which is why we are putting such an emphasis on design and competence in that way. That is the context in which we approach not only the Barker agenda but the responsibility on us to ensure that social housing has the right place, and that we have a choice that is a balance between renting and buying but which at its heart has the needs of the family as our guiding requirement to provide what we can in the best possible way, using our resources in the most efficient way possible. I am very grateful to noble Lords who have spoken in the debate.

Terrorism Bill

Consideration of amendments on Report resumed.

Lord Goodhart: moved Amendment No. 47:
	Page 5, line 17, leave out ", in the opinion of the constable giving it,"

Lord Goodhart: My Lords, Amendment No. 47 is the first of a group of amendments, including Amendments Nos. 48 and 60, which are a very important group and which are of a quite different nature from the other amendments to Clause 3, which are mostly concerned with the problems potentially facing Internet service providers. This is an entirely different problem; it is not of any concern to Internet service providers but it is of concern to us, because we see it as a potential threat to freedom of speech.
	The effect of Clause 3 is that a constable can, on the basis of his own opinion of the contents of a statement, give notice to the Internet service provider that carries that statement that it is a terrorist statement. The Internet service provider then has to block that statement within two days, or commits an offence—or potentially commits an offence. As the Minister pointed out in Committee—and of course I was aware of that—it is not an offence simply to refuse to comply with the notice; but the service of the notice exposes Internet service providers to prosecution under Clauses 1 or 2.
	The ISP can of course challenge the opinion of the constable and say that the statement is not a terrorist statement. The problem is that no ISP is going to do that. The ISP has no direct interest in the context of the material that is transmitted, and it has no incentive whatever to fight on an issue at the risk of spending a great deal of money and, what is worse, of a conviction if it loses that fight. In practice, therefore, the effect of the service of the notice will be that the statement will be withdrawn by the ISP.
	The Internet is now an extremely important method of communication. Around the world oppressive regimes—and I refer in this context specifically to China and Saudi Arabia—require ISPs operating in their territory to block websites and transmissions that they do not like. I believe that in China there is a system by which any message that includes the word "democracy" automatically gets blocked. Therefore, we believe that the power to block a website is a serious threat to freedom of speech and, while it might be unlikely that it could have that effect in this country, it does have that effect in a number of other countries.
	I realise that when the Bill refers to a constable it is not likely to be the ordinary bobby on the beat who takes that decision; it will be someone higher up the hierarchy; but it will still be a policeman. Because of the potential threat to freedom of speech, we believe it is essential that any power to block a website, or to cause material to be taken off the storage of an Internet service provider, ought to be monitored by the judiciary. It cannot be left to the police.
	For the reasons given, the ISPs will not fight the notices given under Clause 3. I am not criticising them at all—I quite understand why they will not do so—but it means that they will not defend freedom of speech. It is essential, therefore, that any notice given under Clause 2 should have prior clearance from a fairly senior judge: it would be a circuit or High Court judge in England, and a corresponding judge in Scotland or Northern Ireland. I accept that this cannot be a "trial" in the ordinary sense of the word. The application will have to be made ex parte, as it used to be called in the days when lawyers were still allowed to use Latin expressions. It will be one-sided, and the judge will have to act on the basis of the evidence put before him or her by the police. Even so, that provides what we believe is a significant check to abuse of this power, and it would certainly make the police think twice before they decided to apply for a notice in relation to something that was, in practical effect, harmless. We believe, therefore, that there is a real threat here to freedom of speech, and that these amendments are necessary in order to prevent or limit that threat as much as possible. I beg to move.

Baroness Scotland of Asthal: My Lords—

Lord Kingsland: My Lords, I rise only very briefly to reaffirm my support for this amendment. I do not think I need to add anything to what the noble Lord, Lord Goodhart, has already said.

Baroness Scotland of Asthal: My Lords, I apologise to the noble Lord for being precipitous in rising. I rather anticipated that he might say what he did.
	The effect of this amendment would mean that we had judicial scrutiny of each and every notice that was served under this provision. Noble Lords will know that we already have something similar with regard to pornographic material that is identified and taken down, and I hope noble Lords will accept that the way in which that is policed by those enforcement agents who are responsible for it is proportionate, reasonable and appropriate. We would expect exactly the same approach to be taken in relation to these matters too.
	The noble Lord, Lord Goodhart, says the effect on service providers will make them not question the way the notice has been given. He is far too pessimistic, not least because service providers have an interest in making a service available to their customers in a commercial world. It will be necessary for those service providers to respond to the commercial interest, if no other, in making sure that they meet the proper demands of the market, and proportionate use and exercise of this opportunity would be available to them.
	The effect of these amendments and the introduction of the judicial oversight in the way the noble Lord proposes would, in effect, make these provisions totally unusable. I shall explain why that is so. It is implicit in inserting judicial involvement that this is a more burdensome process than that we have provided for in the Bill as it stands. If such an additional burden is being placed within the process, there must therefore be a good reason for it and that reason becomes more pertinent in the fast-moving world of the Internet. The delay cannot simply be glossed over as if it does not matter. In relation to the Internet, it does.
	The reason for amending the Bill in this way would have to be for providing greater protection to the individual than is currently the case. With the insertion of intent and recklessness into Clause 2, I do not understand how the amendment provides any more protection.
	Under the existing clauses, if the website host does not comply with a notice, the police will have to choose to prosecute under Clauses 1 or 2, providing a full, evidenced case, which satisfies a court just as required under amended Clause 3. The prosecution would have to prove intent or recklessness and they would have to prove that the person in question did not endorse the statement, if the person availed themselves of that defence.
	Several noble Lords in Committee were concerned that no one would fail to comply with a notice because of the effects of being considered to endorse the statement. That concern is substantially weaker now that it is for the prosecution to prove intent, or recklessness.
	There was also some concern about those who would be issuing notices. In our discussions with the Internet industry over implementation, we have committed to working with them to solve the practicalities of the notice scheme, modelled on the similar arrangements that already exist and have worked well. I can assure the House that appropriate police personnel would be making decisions about when and whether to issue a notice. I will add to these comments in relation to government Amendments Nos. 51 and 58, when we reach them.
	Requiring the police to go to a judge before issuing a notice slows down the process at the cost of increasing the risk that a statement or article record has a negative effect on those seeing it and delays the speed at which a notice can be issued to a person—who may or may not be aware of the presence of such material—enabling them to remove that material. The net result of this does not provide any more protection for the individual than they already have under the drafting as it is.
	Amendment No. 48 makes provision for the Secretary of State to make regulations to provide for an application to be heard without notice to the relevant person and in his absence, and for the person on whom the notice is served to apply to the court for the revocation of the notice.
	Again, we simply cannot see the benefit in that. First, we do not think that the police ought to go to court before issuing a notice. Secondly, providing for a person to be able to revoke a notice seems unnecessarily burdensome.
	As the noble Lord rightly accepted, the notice is not intended to be a notice to a person not to commit an offence. It is a notice that there is a statement there that possibly comes within those offences and the person can comply or not. If that person does not think that that statement constitutes an offence under Clauses 1 or 2, then that person can ignore that notice. The only sanction for not complying is that the person does not have the right to claim, if prosecuted—I emphasise if prosecuted—that he did not endorse the statement.
	We see no useful role for a revocation process. As I said, the concern that people have no choice but to comply is substantially reduced with the amendments that we have made to Clause 2.
	I should also say that one of the advantages, but also the disadvantages, of the Internet is that one can take down a site in one minute and put back an almost identical site in another. If someone wanted to play cat and mouse with this, they would just wait until someone went to court to get the order, they would have the order in their hand, then they would take down the site and put up the next. You would have this going backwards and forwards all the time. We do not think that that is helpful. We certainly do not think that that is something that the noble Lord would want.
	These amendments slow down the time that it would take to ensure that an offending statement—one that could be of use to terrorists or encourage terrorism—is removed from the Internet, with all the consequent damage that such a delay could cause. In the light of what I said, I would invite the noble Lords to withdraw those amendments.

Lord Goodhart: My Lords, I am grateful to the Minister for responding to the amendment but I am afraid that I remain totally unpersuaded by her arguments. To begin with, although I accept that in many aspects of the Bill the insertion of an intent or recklessness test in Clause 2 makes a difference and is helpful, I do not think that it makes any difference at all to this problem. First, as soon as the Internet service provider is given the notice, it knows exactly what is going on. Secondly, and more importantly, it might make it easier for the Internet service provider to defend the case if it sought to do so but the Internet service provider will not do that. Frankly, I am wholly sceptical of the idea that market forces will press the Internet service provider to defend notices of this kind. All its interests are in doing nothing of that kind. Far from Internet service providers acting as protectors of freedom of legitimate speech, I have to say that in all the discussions and communications that I have had with the Internet Service Providers Association—I understand this and do not criticise it at all—it has shown no interest whatever in this group of amendments. So I think that that is an unrealistic basis for saying that the amendments are not necessary.
	Nor do I believe that there is likely to be a significant delay. What the police would have to do in this case is similar to the need, in many cases, to obtain a search warrant or arrest warrant, for which they now have to go to a judge. Admittedly, the amendment requires a slightly higher level of judge—a circuit or High Court judge rather than a district judge or a magistrate. But I do not think that the police have a great problem with delay in getting warrants and I do not see why, where a case is made out, they should have a delay in getting permission to serve a notice here.
	It is also true that the application for the notice will be heard in private, so the first that the client of the Internet service provider whose material is blocked will know of it is when the block happens, which is exactly what will happen anyway. There is always a possibility of finding another service provider or something of that kind, but that will not be affected by this group of amendments.
	I have every respect for the police and I am sure that they would not—certainly not consciously—abuse their powers here but, as we have seen from other countries, there is a real risk of abuse of powers. It is plainly desirable that, before they go out and serve a notice, the police should be made to think twice about whether they really need to do that, and the best way of doing so is to say that they have to go to a judge to ask for permission.
	Having said that, at this time of night I am not proposing to press the matter to a vote and therefore I will ask the leave of the House to withdraw the amendment, but I think that this issue may well come back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 48 not moved.]

Lord Goodhart: moved Amendment No. 49:
	Page 5, line 28, leave out subsections (4) and (5).

Lord Goodhart: My Lords, we return to problems facing Internet service providers which we also dealt with under the first group of amendments. It has been suggested to me, and I have agreed, that I should take this group and the next group together because both groups concern the problems that might, in different ways, face service providers. The first group comprises Amendments Nos. 49, 50 and 52 and government Amendment No. 51 is in between. It is a fairly straightforward government amendment which I certainly do not object to.
	Amendments Nos. 49, 50 and 52 are associated with issues that relate to what in the Bill are called repeat statements. They are of serious concern to Internet service providers. Under Clause 3(4) notice given to an Internet service provider is treated as applying not only to the original matter of transmission by the ISP, but also to a repeat statement which is a statement substantially to the same effect as the original one but in a slightly different form. Of course, Clause 3(4) does not prevent a statement operating through a different Internet service provider. That would have to be dealt with by the service of a new notice on the new provider. It is not very difficult to see that someone whose website is blocked through one Internet service provider may not find it very difficult to find another Internet service provider.
	Whether there is a repeat statement or not is nearly impossible to monitor. Monitoring what is passed through an Internet service provider is extraordinarily difficult. There are ways in which it can be done, but they are likely to be difficult and ineffective. One of the problems is that, under the Bill as it now stands, ignorance that a repeat statement is being transmitted is, in fact, no defence because the effect of Clause 3(4) is that the Internet service provider which has been served with a notice is treated as having knowledge of the repeat statement whether it knows about it or not. That, therefore, overrides the test of intent or recklessness under Clauses 1 and 2. The Internet service provider commits the offence even if it does not know that it is transmitting the repeat statement.
	On the face of it, that is inconsistent with the electronic commerce regulations—Regulations 18 and 19—which require actual knowledge rather than some kind of assumed knowledge. I wonder how the Government reconcile those provisions with the e-commerce regulations. Admittedly, the Government provide a defence if the Internet service provider has taken "every step it reasonably could" to prevent the repeat statement becoming available to the public.
	Amendment No. 49 would remove any special treatment for a repeat statement. It would mean that a new notice would have to be served. There is probably not a great deal of practical difference between them since the originator can always switch to the new ISP and the process would plainly have to start again.
	If it is necessary to retain special treatment for repeat statements, it is too strict a test to require an ISP to take every step it reasonably could. We believe that the Bill should be satisfied if the ISP has taken reasonable steps. As the Bill stands, the ISP will have to show not only that the steps that it took were sufficient to be reasonable as a whole as a block to unlawful transmission, but that there were no other steps that could have been taken. That is altogether too strict a test. The burden on the ISP should be to show that it has taken steps which, in total, amounted to a reasonable effort to block the repeat statement. If that has been done, it should be enough.
	There is one further point. Regulation 21 of the electronic commerce regulations requires that the burden of proof for any defence raised under Regulations 17 to 19 must be evidential only. Clause 3(5) creates a defence if the defendant shows that it took all reasonable steps to prevent a repeat. That is not compatible with Regulation 21, because the burden on the defendant is not limited to an evidential burden.
	Moving on to the second group of amendments—Amendments Nos. 53, 54, 56 and 57—subsections (8) and (9) of Clause 3 define statements that are "unlawfully terrorism-related" and can be the subject of a notice. A statement is unlawful if it is capable under those subsections of being understood as an encouragement of terrorism. That is an amazingly wide definition. All kinds of legitimate statements are capable of being understood as encouraging terrorism by those who want to understand them in that way. For there to be an unlawful transmission there must at least be a probability that these statements are not only capable of being so understood but will be so understood. Clauses 1 and 2 require that in order to be an offence a statement that is published or disseminated must be likely to be understood as encouraging terrorism. We see no possible justification for a lower test in Clause 3.
	When we raised this issue in Committee, the Minister said that there was a difference because, in Clause 1—and the intent test was not in Clause 2 then—you know the audience to whom the statement is being made. However, under Clause 3, the police do not know who is going to receive the message transmitted by the ISP. It is a wholly irrelevant distinction. First, under Clause 1, you do not necessarily know who your audience is. You may do if you are holding a public meeting, but even then, if it is of any size, you will not know who is there if it is not by invitation. If a statement is published via being made on radio or television, you have no idea whatever who is listening.
	Secondly, now that we have intent in Clause 2, someone who is disseminating terrorism material may very well not know in some cases to whom that material is being disseminated. Thirdly, surely the test of how a statement is likely to be understood depends on the content of the statement. If I see a statement praising 9/11, I understand it is likely to encourage terrorism even if I am repelled by that statement. Whoever monitors Internet material can say, "This is something which I can see is directed at supporters and is likely to encourage it". If so, so be it: that is an unlawful transmission. It is not enough to say, however, that you can block a transmission if it is a borderline case, where it may or may not encourage terrorism—where you can say that it is capable of encouraging terrorism, but you cannot say that it is likely to do so. I beg to move.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Goodhart, for explaining how he sees these amendments and the advancement of the arguments in support. However, I do not agree with him.
	Amendment No. 49, for example, which removes the provision on repeat statements, would make the notice provisions utterly worthless. Without them, a person could receive a notice, wait for two working days, remove the material at the last possible moment in order to technically comply, and then load up the same information a matter of minutes later. I am sure that the noble Lord would not like to facilitate that sort of behaviour.
	The repeat statement provisions are at the heart of the effectiveness of Clause 3. Their removal renders the clause totally impractical. Without a requirement to take reasonable steps to prevent repeat statements occurring, the police would have to engage in sending hundreds of messages to the same webmasters who, if they were canny enough, could always comply and yet still make their statements available. The Government cannot, therefore, accept this amendment.
	I was pleased that the noble Lord acknowledged that there is a reasonableness defence, but we differ as to how that should be expressed. There is a subtle difference between the construction put on it by the noble Lord and the interpretation to be given to our provision. Every step a person could reasonably take requires both that he is capable of taking a step and that he takes it. That is every step he can reasonably take. "Reasonable steps", as suggested by the noble Lord, is simply not as clear. It is not clear whether the person in question must be capable of making the step that the court requires of it. It is not clear that they can comply simply by taking one, or only some, steps, when it may be possible for them to take others.
	We must remember that the statements which we are seeking to prevent being made have a potential role in encouraging terrorism, or provide information of use to terrorists. This is therefore not a trivial matter. We much prefer the current drafting, which we contend is clearer and more readily understandable. We hope that the noble Lord will feel able to agree with that.
	On Amendment No. 51, in my name, the Government are aware that Internet service providers in the UK are concerned that our provisions on repeat statements may contravene the Electronic Commerce Directive, which requires that a general obligation to monitor cannot be placed upon those service providers that fall within the terms of the directive. We are not of the view that the Bill places such an obligation on those providers, but brought forward an amendment in the other place to put the matter beyond doubt. Clause 3(6) was inserted to make absolutely clear that the protection against having a general obligation to monitor placed on certain Internet service providers offered by the Electronic Commerce Directive applies to this Bill.
	As I stated in Committee, we became concerned about this subsection and have taken the view that its retention does not achieve the aims it was designed to meet. The Government's view at the time of laying the amendment remains the same: the repeat statement provisions in Clause 3 do not impose a general obligation to monitor that offends against the directive. Notwithstanding this, Clause 3(6) was inserted to provide additional clarity.
	The Internet Service Providers' Association UK, while welcoming this amendment, raised some concerns that the protections offered by Clause 3(6) did not apply to those covered by the directive who participated in voluntary blocking of child pornography. In addition, we have become concerned that if Clause 3(6) remains as it currently stands, rogue website administrators may decline to edit content on their sites simply to avail themselves of the protection of Clause 3(6). This is clearly unsatisfactory and demands to be addressed.
	The primary purpose of Clause 3 is to require website administrators to be responsible for the content they are making public, especially those administrators engaged in making available extremist messages and images. In the light of our previously stated view that we do not consider that to comply with a notice will require general monitoring of a kind prevented by the directive, we have reconsidered the position and concluded that Clause 3(6) has caused unnecessary confusion and that it would be preferable to omit it.
	More generally, the industry has expressed concern about the need for further regulations being made applying the e-commerce regulations—SI 2002/2013—to provisions in the Bill. I can confirm that the Department of Trade and Industry intends to bring forward a statutory instrument to apply certain provisions of those regulations to the Bill. The Bill could be covered in that exercise so far as is necessary. My officials have had some very constructive correspondence with the Internet Service Providers' Association UK during the passage of the Bill and have drawn up this change in the light of those discussions. We are satisfied that this meets its concerns and wrote to the association last week setting out the Government's detailed response to them.
	Amendments Nos. 53, 54, 56 and 57 remove the references to being "capable of being" understood to "likely to be" understood. The "likely to be" understood formulation, which the amendments propose, mirrors the provisions in Clause 1 about the effects of a statement. I set out the Government's position on this fully during Committee. Currently, it may well be that in issuing a notice the constable is aware that the statement is unlikely to encourage others to terrorists acts because it has, for example, been posted on a website run for children's educational benefit and no one viewing it is likely to understand it as an encouragement. None the less, if someone were to visit the site, they might be capable of understanding it as such. Instead, referring to the audience who have or would have seen it and on whom it is likely to have an effect, the constable is being asked to make a judgment as to whether such a statement is capable of being understood as unlawful terrorism-related.
	Instead of a second guess at whether the court will take the view that an audience is likely to have understood it as an encouragement, the police issue a notice saying that they are concerned about the presence of the statement. This allows the police to issue notices not only instead of prosecuting individuals, but also to warn individuals that their websites are being targeted and to make people aware of offensive content that they may not be aware of. The utility of the notice provisions extends beyond simply being a precursor to prosecution. If a person posting a statement does not accept that anyone is likely to understand it as being such an encouragement, they do not have to comply with the notice, in full confidence that they will not be prosecuted.
	In the light of what I have said on both groups of amendments, I hope that the noble Lord will feel able to withdraw his amendment and not bring it back at a later stage.

Lord Goodhart: My Lords, I am grateful to the Minister. My reactions to what she has said are mixed. I start with my most favourable reaction; I accept that there is a necessity for some form of provision to try to control repeat statements. We would not therefore want to move the amendments which would completely delete the provisions relating to repeat statements. As regards the remaining provisions on repeat statements, again, before reaching any conclusions, I feel it necessary to discuss them again with the Internet service providers.
	To turn to the points with which I do not agree, I remain entirely unpersuaded by the Minister's response to Amendments Nos. 53, 54, 56 and 57. The test for what is unlawful terrorism-related material should be that it is something that is likely to encourage terrorism. I found the idea of such material going via a children's programme totally unrealistic. That does not touch the issues here at all. The nature of the material has to be considered. If it genuinely encourages terrorism, then it does not matter what programme it goes out on—it can properly be blocked. In those circumstances, it is inappropriate to say that something needs only to be capable of being understood as encouraging terrorism.
	This is an issue on which I shall be interested in the views of the Internet service providers, but it seems that, quite apart from their views, this potentially infringes freedom of speech. This is a matter that I shall certainly want to look at again very carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 50 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 51:
	Page 5, line 46, leave out subsection (6).
	On Question, amendment agreed to.
	[Amendments Nos. 52 to 54 not moved.]

Viscount Ullswater: My Lords, I must advise the House that if Amendment No. 55 is agreed to, I will be unable to call Amendments No. 56 and 57 because of pre-emption.

Lord Kingsland: moved Amendment No. 55:
	Page 6, line 25, leave out subsection (9).
	On Question, amendment agreed to.
	[Amendments Nos. 56 to 60 not moved.]

Lord Goodhart: moved Amendment No. 61:
	After Clause 4, insert the following new clause—
	"DEFENCES
	(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (3), it is a defence for a person charged with an offence to prove a particular matter.
	(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
	(3) The provisions in respect of which subsection (2) applies are sections 1(6), 2(8) and (9) and 3(5)."

Lord Goodhart: My Lords, this amendment, which is again significant, concerns the special defences that are provided in Clause 1(6), Clause 2(9) and Clause 3(5). I have accepted the various changes that the Government have made to these amendments, but in Committee I argued that they were unnecessary if an intent test was applied, whether or not they were combined with a—I apologise to the House, I was reading from the wrong page.
	Amendment No. 61 concerns the standard of proof where legislation requires the defendant to prove something as a defence. The normal rule is that the defendant must prove the facts that he or she is required to prove on the balance of probabilities. However, where an Act so provides, it is possible to impose a lower standard of evidential burden. If a defendant shows that there are arguable grounds for his defence, the burden shifts back to the prosecution to disprove that beyond reasonable doubt. That was done in comparable circumstances in Section 118 of the Terrorism Act 2000.
	Recklessness is, as I argued earlier today, an unsatisfactory ground for conviction in these cases. The real test will be in relation to the relevant provisions in Clauses 1 and 2 over the defence that the defendant made it clear that the publication did not express his views. That means that it will be necessary to look at the disclaimer—using disclaimer in the broad sense, including not merely formal disclaimers but any equivalent which has been published—along with the overall tone of the publication, and so on. The dispute on whether a disclaimer or other material is enough to show clearly that the statements did not express the defendant's view is objective, not subjective. Therefore, where there is some kind of disclaimer, it should be for the prosecution to show that it is not clear enough. It is not for the defendant to show that it was. This is a case where making the burden of proof evidential is necessary and essential.
	In this case, these defences are going to be of great importance so long as the recklessness test remains in the Bill, as it clearly will, since they will be the only way out in a potentially large number of cases where it is possible to say that the material one has been putting out could encourage terrorism among people who were likely to be vulnerable to that encouragement. In those cases, such a defence will be important; for example, to all the major media outlets—both broadcast, like the BBC, and press—that may want to do things which they are well aware could technically cause support or encouragement for terrorism among some people.
	I believe, therefore, that it is essential that the test be made a reasonably low one. Once the defendant has produced some grounds for saying that it does not represent his views—and that he made it clear that it does not—then it should be for the prosecution to show that there is no sufficient clarity and that the offence has, in fact, been committed. I beg to move.

Lord Thomas of Gresford: My Lords, I strongly support the amendment because the defences propounded in Clauses 1 and 2 require the defendant, generally, to prove a negative. Under Clause 1(6)(b) he has to prove,
	"that the statement neither expressed his views nor had his endorsement".
	Under Clause 1(6)(c) he has to prove,
	"that it was clear . . . that it did not express his views".
	The defence in Clause 2 is essentially proving a negative. Subsection (8) states:
	"In proceedings against a person for an offence under this section it is a defence for him to show . . . that he had not examined the publication . . . that he had no reasonable grounds for suspecting that it was a terrorist publication; and . . . that the matter contained in the publication by reference to which it was a terrorist publication did not have his endorsement".
	These are serious offences, both punishable by imprisonment of up to seven years. Consequently, it ought not to rest finally on the defendant to show a negative. Certainly he will be required to give evidence; certainly he will be required to raise the issue by saying, "Well, I never endorsed this. I never knew about it. I never examined it". But once that has happened [Interruption]. I shall burst into song in a moment, I can see, and it would probably be better for your Lordships if I did.

Lord Elton: My Lords, it is such a pleasure to have two speakers from the Liberal Democrat Front Bench. They obviously cannot perform a duet but it is good to have an accompanist instead.

Lord Thomas of Gresford: My Lords, I shall have a word with the accompanist later.
	My point is that it is obviously incumbent on a defendant to raise the defence. He has to say, "I did not see it" or "I did not endorse it", but once he has done that the burden of proving a serious criminal offence should, as in the generality of cases, rest on the prosecution, which would have to either discredit him by cross-examination or produce evidence to rebut the defence he was seeking to put forward. It would then be for the jury to decide. As it stands, with the burden being placed on the defendant, these alleged defences are not real or acceptable defences at all.

Lord Kingsland: My Lords, the noble Baroness has been on the end of two barrels from the Liberal Democrat Front Bench and it seems almost inhumane for me to fire at her from a different point in your Lordships' House.
	I support the amendment of the noble Lord, Lord Goodhart, and I want to re-emphasise the two points that he made. First, given the fact that this test is contained in the most important parts of the Terrorism Bill, and as it runs right through this Bill—principally, but not only, because of the definition of "terrorism" contained in it—it plays back the principle of consistency that the noble Baroness deployed with such skill in the course of our discussion over Amendment No. 17. We should apply that principle to the question of the evidential burden.
	Secondly, the two offences to which the amendment would apply were it to be accepted are contained in Clauses 1 and 2. They are both offences which carry with them very stiff penalties; and that is an additional reason for adopting the amendment.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Kingsland, for his compliment in saying that I debated "with such skill and efficiency". I would just note, of course, that that skill and efficiency had no effect whatever. I therefore wish him the same success that I received.
	In relation to the amendment, perhaps I may say to the noble Lord, Lord Goodhart, that I am a little surprised. I shall explain why. When we debated these matters in Committee I listened with great care to everything said in this regard because, of course, we were looking at the difference between the evidential burden and the usual burden. The point made so powerfully was that if we did not have in the provision intent simpliciter, or indeed intent with recklessness, then one of the ways of addressing the issues about which he was concerned was by having the reverse evidential burden. However, if we had the intent provision, of course all these worries and concerns would fall to one side.
	I just remind the noble Lord, Lord Goodhart, of what he said then. I think it might assist your Lordships if we refresh our memories so I cite it here in full. The noble Lord, Lord Goodhart, said that this new clause was,
	"a second-best to putting an intention test into Clause 2, in which case this amendment would be unnecessary".—[Official Report, 7/12/05; col. 705.]
	I warmly agreed with him and it was part of the reason, when considering how to address the proper concerns that had been expressed, that we brought forward the comprehensive amendments to which I have already referred. I just want to say in that regard—I say it with utmost gentleness to the noble Lord, Lord Kingsland—that it is a tad inconsistent to say that we agree in principle on recklessness, we agree on intent, but we do not agree that we have now done enough and do not need this. I would be happy to give way if, on mature reflection, the noble Lord wants to change his mind. I note with the most acute disappointment the noble Lord shaking his head.
	Let me, therefore, try to respond more fully. I think we have to examine this properly and I feel that it would probably be appropriate just to clarify the actions that would force these defences. Clause 1 creates the defence of encouragement to terrorism. Under this clause it would be an offence for a person to publish, or cause another to publish on his behalf, a statement they either intend to be understood as an encouragement to terrorism or that they are reckless as to whether it is likely to be so understood. This will use the subjective recklessness test definition set out in Regina v Gee.
	Clause 2 creates the offence of dissemination and the intent provision is provided for in the new clause in the way that we have all debated this afternoon. It is therefore currently a defence for a person charged under Clause 1 to show that he published, or caused to be published, the statement in respect of which he is charged only in the course of provision or use by him of a service electronically, and that the statement neither expressed his views nor had his endorsement. So the defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 of the Bill to show that he engaged in the conduct falling within Section 2(1); namely, disseminating a terrorist publication only in the course of provision or use by him of a service electronically and that the publication, so far as it encouraged terrorism, neither expressed his views nor had his endorsement and that it was clear in all circumstances that it did not express his views, nor have his endorsement, and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. All the things that noble Lords wanted, I may respectfully suggest, are now there in the offence, being something that is a defence to the application. Overall the burden will continue to rest on the prosecution in the ordinary way.
	Because of the changes we have made, the evidential shift, as the noble Lord, Lord Goodhart acknowledged in Committee, is no longer necessary. A person who receives the notice under Clause 3 will be responsible for the repeat of statements and we have gone through these matters quite extensively. Whether or not the burden of proof should be placed on the defendant is always a difficult issue. When it is, it must be assessed to ensure that it does not breach Article 6 of the ECHR, which guarantees the right to a fair trial. It is the Government's view that it is proper and fair for the defendant to bear the burden in these circumstances.
	Placing a burden on the defence in relation to the offences is fair and reasonable for a number of reasons. First, the question of endorsement, which is an issue here, is not an element of either of the offences. The defence is therefore a true defence aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or it expressed his views is a matter that is peculiarly within his own particular knowledge. It is right and proper for it to fall to the defendant to prove that he did not endorse a publication or statement in all the circumstances. The defendant will have available to him evidence to show whether he endorsed a statement or publication or, as the case may be, his intention for disseminating it. For example, he can provide testimony from his audience, point to disclaimers and bring forward evidence on the nature of his business.
	Placing a burden on the defence in relation to Clause 3(5) is also fair and reasonable for a number of reasons. The steps a person took to prevent repeat statements appearing are within his particular knowledge, and the process whereby a person becomes liable for repeat statements is fair.
	The reversal of the burden in any particular offence is not a small matter. I know that the noble Lord appreciates that, but as we discussed in Committee, it is not a novel one. I remind your Lordships of the strong parallel I made to Section 18 of the Terrorism Act which Parliament passed only five years ago and which creates the offence of money laundering of terrorist property. This offence provides for the defendant to prove that he did not know, and had no reasonable cause to suspect, that terrorist property was involved. This is a very similar provision. The defendant is best placed to prove whether he did or did not endorse publication and make this clear in all the circumstances.
	Accepting the amendment would make the defences to the offences of encouragement to terrorism and dissemination of terrorism too easy to establish, especially in the face of the amendments that we have made to increase the burden on the prosecution with respect to Clause 2. I remind your Lordships once again that it is the Government's intention to create an offence that covers the evil of encouraging others to commit terrorist acts, and to make this offence workable.
	I hope that we have demonstrated that, as a listening Government, we listen with a great deal of care and attention. We assume that noble Lords opposite mean what they say when they say that if we introduce an intent test, it would be unnecessary to have these amendments. I respectfully agree with their original position. We have sought to meet their concerns and we believe that we have met them fully and honourably.

Lord Goodhart: My Lords, I am grateful to the Minister for her full reply to the amendment. I was interested by her reference to what I said in Committee, which I absolutely stick by, that if there was an intent test it would be unnecessary to have this kind of defence.
	The Government have taken that very much on board. They have said that if intent is proven, there is no room for the special defences. The special defence only arises in a case where the prosecution has failed, or not tried, to prove intent and is simply relying on the recklessness test. Where the basis of the case against a defendant is recklessness, it is essential that we have some form of protection such as providing that there is a special defence and that the burden of proof is shifted on to the defendant.
	There are two arms to the defence. The first is whether the defendant himself has the relevant view as to what he is transmitting. If he says that it does not represent his own views it seems to me that there are ways of disproving that. One way would be to say, "You have only to look at what he said and it is perfectly obvious that it represented his views". Another is to say, "He may say that but if you look at other occasions on which he has spoken, he has there made it clear that the views expressed in this material are the same as his views". Whether either applies, it seems to me a perfectly appropriate matter to require the prosecution to prove.
	It is even clearer when one gets to the clarity of his disclaimer. I concentrated on it earlier. As my noble friend Lord Thomas of Gresford said, it is plain that he is being called on to prove a negative. That is an extraordinarily difficult thing to do.
	There is the extraordinary width of the test in Clauses 1 and 2 as to what might amount to a terrorist publication. That makes it essential to have a meaningful defence; otherwise, people who do not intend to encourage terrorism will be convicted simply because they have been unable to discharge a significant burden of proof. I do not think that that will do. It is a matter to which we shall have to return at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 8 [Attendance at a place used for terrorist training]:

Lord Goodhart: moved Amendment No. 62:
	Page 10, line 23, at end insert—
	"( ) In proceedings against a person for an offence under this section, it is a defence for him to show—
	(a) that he had permanently ceased to attend at the place as soon as practicable after becoming aware that instruction or training was being provided there for the purposes specified in subsection (2)(a); or
	(b) that he had at no time while attending at the place intended to further or assist other persons to further such purposes.
	( ) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not."

Lord Goodhart: My Lords, I am sorry the House has to listen to me once again. This clause makes presence at a place where terrorist training is provided an offence punishable with a sentence of up to 10 years' imprisonment. It should be open to the defendant to show that he was not there for the purpose of furthering terrorism. It is a matter of particular concern to the media, and has been raised with me by the BBC.
	In debate, the possibility was raised that a journalist might go undercover in order to write an article exposing what is happening. There is a stronger case. The BBC says that it would wish to be able to send reporters openly to training camps to interview the leaders. That is a legitimate and important form of journalism. I assume that this would be overseas terrorism and not terrorism directed towards this country. Such journalism is telling the population of this country what the leaders of these movements think and why they are doing what they are doing. It is not encouraging other people to support them. That legitimate and important element of journalism would become wholly impracticable. I am told that it is already affecting BBC programme-making for the future. The BBC would be most unlikely to do something which would be an offence under the Bill and rely on the DPP or the Attorney-General blocking any prosecution.
	There is a need to protect the legitimate actions of the media. John Simpson wrote an important article in last Sunday's Sunday Telegraph. That article made it clear why Clause 8 would damage investigative journalism which is in the public interest. I hope that the Minister has read it. If she has not, she certainly should as soon as possible. It explains why Clause 8 would do, and is already doing, harm. I shall quote not the whole article, because it is quite long, but the concluding paragraph. It states:
	"There have been unreflective, knee-jerk laws in this area in the past: the ban on broadcasting the sound of Gerry Adams's voice, for instance. It will be much harder to defend society better against terrorism if we prevent journalists from finding out the precise nature of the threat against us. Does the Government really mean to do this amount of damage to the meticulous, independent journalistic investigation of terrorism? Surely not".
	The whole of this article puts much more clearly than I could—indeed, I do not have time to repeat all of it—why this amendment to Clause 8 is essential. I accept that this is a case where the defendant should have to explain his or her reasons for going to the place where training is happening and not leave it to the prosecution to prove. But it should be an evidential burden. Once it can be shown, for example, that somebody was going there as a journalist, it should be for the prosecution to prove that that person was going there to assist in the training and not simply as a journalist.
	Of course, people other than journalists are concerned. A house that is used for training may be at issue. The wife and the children of the owner of the house in charge of the training may have taken no part in that training, but would find themselves committing an offence that is punishable by 10 years' imprisonment. It is possible too that someone may go to a training place simply as someone's wife or partner and intends to take no part. I doubt whether those examples alone would justify this amendment, but the effect that this clause would have on serious investigative journalism of significant public interest makes it necessary to ensure that a defence of this kind is available. I beg to move.

Lord Elton: My Lords, the noble Lord's is not a solitary voice. He rightly said that the last two of his illustrations might not justify this amendment, but his principal example of the investigative journalist is crucial. I hope that some means of protecting that activity will be found.

Lord Judd: My Lords, the noble Lord, Lord Goodhart, said that journalism is not the only profession to be concerned. The other, obvious example that springs to mind is the courageous academic who is trying to conduct serious research into the nature of terrorism and what confronts us. He might find himself or herself in acute difficulties under the proposed legislation. From time to time, a Member of this or the other House might similarly want to inform himself about the nature of what we were confronted with and he too would have to think seriously about whether he could undertake such a mission.

Baroness Whitaker: My Lords, I hope it is also possible that members of the security and the intelligence services would be able to infiltrate such camps without incurring risk.

Lord Thomas of Gresford: My Lords, the Government have graciously conceded that intention and recklessness should be the mens rea in offences under Clauses 1 and 2. It is interesting to compare that with the offence that is created by Clause 8. The actus reas is simply attending a training camp. That is all. The mens rea is not encouraging, intending to help, playing a part or anything of that sort, the mens rea is simply knowing or believing that the training is being provided at that camp. That opens a person to an offence carrying 10 years' imprisonment.
	The purpose of this amendment is to cover all the areas that have been referred to by noble Lords in discussing this amendment. Clearly where one has as draconian a prohibition as is set out in Clause 8, it is right that a person with perfectly legitimate reasons should not have to face the possibility of being convicted of a serious offence. It may be a medical person, for example, as well as the illustrations that have already been given, who finds himself attending at a training camp. If he puts forward his perfectly legitimate reasons for being there, it is for the prosecution to rebut his defence with evidence. That is the essential thing; that it should be with evidence. In a defence of this type, raising an evidential burden of proof should be faced, and not with something that is far more nebulous than that.
	I hope the listening Government—as we have heard it said at least six times today—will listen just a little bit more carefully on this one, and realise how tight and draconian this particular section is.

Baroness Williams of Crosby: My Lords, I add one more voice to this chorus asking the Government to think carefully about this. I quickly pick up a slightly different example from any of those so far put before the House. The assumption behind this Clause, and indeed behind the Bill, is that we have some fairly clear idea about where terrorism is coming from, and that it largely emanates from Al-Qaeda and other global terrorist networks. That is probably true.
	Yet my political memory goes back to other examples of terrorism which are much involved with the training of people, some of them in this country. Many of us will recall, for example, that there were training camps run by the IRA and the Provos, and also by the Loyalists, in parts of the United Kingdom. I remember as a junior Minister in the second Wilson administration that there was a serious case—the noble Lord, Lord Judd, will probably remember this too—of Colonel Stirling actually running training camps in Scotland, the purpose of which was to support a putsch against the Wilson government. That was not a legend; that was actually a fact. Much more recently, there have been other examples of terrorist camps in a country which would normally expect terrorism to come from inside. I gave in Committee the example, again a genuine one, of extremist right-wing groups in the United States running training camps in the Rocky Mountains, training people in arms, explosives and terrorism, the object being to overthrow the United States government. They admittedly were largely mad, but that did not stop them being in training.
	What really worries me is that, as my noble friend Lord Thomas has said, in effect what we are looking at is a clause so narrowly drawn and so extremely heavy in its danger of sentences being brought against people who attempt to investigate this, that there is a real possibility that this whole area would be overlooked. The reason it would be overlooked is because, as we all know, it is the tendency of intelligence organisations to concentrate on—rightly so—the current major threat. They often do not notice nor have they the resources to target areas where they are not looking for trouble to arise.
	I seriously hope that the Government will look at the matter again and consider adopting something like my noble friend's amendment, because I am profoundly concerned about the effects of the provision, in not only the obvious but the less obvious areas of terrorism. We have no reason to believe that terrorism in Northern Ireland has completely ended. It is possible that there might be other terrorist groups of an apparently small and insignificant nature that could nevertheless resume terrorist activities. I hope that the Government will very carefully think again, as this is a really serious issue and not one to be lightly dismissed.

Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that we will not dismiss and have not lightly dismissed this matter. She was absolutely right to remind us about the pernicious nature that training camps can have and the consequences that they can have in training and influencing those who subsequently go on to commit the most grievous acts of terror to the detriment of our respective communities and countries. We absolutely take that into account.
	Clause 8 creates the offence of attending a place where terrorist training is taking place to underline that very fact. We have to put these provisions in the context of the circumstances that we find ourselves in, whereby the training of young, impressionable men in particular has led to them taking their own lives and the lives of a number of innocent people with them. Preventing those susceptible—particularly young—people being taken in by such trainers and influenced in this most pernicious way is of the utmost importance. Therefore, we agree with noble Lords that this is a very important issue indeed, and we do not take it lightly, because training is a key element of any terrorist activity and it is right that we should clamp down on it.
	I know that concerns have been expressed today, not least by the noble Lord, Lord Goodhart, but by many other noble Lords as well—my noble friend Lord Judd echoed them—about the effect that Clause 8 will have on legitimate investigative journalism. As I made clear in Committee, the Government's position on that is unambiguous. Nothing in the clause, or the Bill as a whole, will in any way hinder the work of legitimate investigative journalism. A journalist who has suspicions that terrorist training is taking place can take steps to establish whether there is any foundation for his or her suspicions. However, at the point when his suspicions have been confirmed, the correct course is for him to leave and alert the appropriate authorities; that is as true for journalists as it is for anyone else.

Lord Elton: My Lords, I cannot see how that squares with the need for the journalist to report fully on what is going on and on the views of the people who are doing those things, which is what all the rest of us need to know.

Baroness Scotland of Asthal: My Lords, the Government have been clear that it is absolutely proper for an investigative journalist to investigate whether a place is a training camp; but, once it has been ascertained that it is a training camp for terrorists, the proper thing for any citizen to do, including journalists, is to leave and to notify the appropriate authorities. That is something that John Simpson himself included in his—

Lord Goodhart: My Lords, would the Minister take this to the lengths of suggesting that if a movement started in Zimbabwe, for example, which planned violent resistance against Mr Mugabe, a British journalist could go to Zimbabwe and could go to talk to the people in this camp only on the basis that he would immediately inform the authorities of what had happened? Surely in a case of that kind it must be a matter of legitimate public interest for somebody to go openly as a journalist, not undercover, simply to find out what the leaders of such a movement were doing and what their objectives were.

Baroness Scotland of Asthal: My Lords, there is nothing in these provisions to stop that. In this clause we are dealing with training camps that promote terrorism and prepare and teach people how to become terrorists. If the noble Lord is asking whether we think it appropriate for someone to go to such a training camp, not to explore whether such activities are taking place, but to report, observe and participate, there is a difficulty with that. It does not impinge upon—

Lord Elton: My Lords, may I—

Baroness Scotland of Asthal: My Lords, I am conscious that it is five past 10. I am entirely in your Lordships' hands. We can go on for so long as the participants wish to, and for so long as the Chief Whip allows me. The Floor is yours.

Lord Elton: My Lords, I want to pick up on one word that the Minister used: "participate". I do not think that anyone was suggesting that there should be any participation.

Baroness Scotland of Asthal: My Lords, we are making it clear that this provision applies to training camps in this country. There is nothing to prevent journalists from continuing with their ordinary journalistic reporting with regard to troubles in other places in the world. We are dealing with terrorist camps of this nature. I remember very graphically the example given by the noble Baroness, Lady Williams, of the circumstances in which she found herself. When she discovered that she was somewhere she clearly did not wish to be, in the middle of a terrorist camp, she got out of there. That is what John Simpson said in his report, too:
	"I made my excuses and left".
	Quite right too. We can assure someone in that position that their ability to report in a proper way is not in any way impinged on by this provision.
	We need to look at this provision with a great deal of care, and we have done so. We do not think that the first part of Amendment No. 62—paragraph (a)—is necessary. The second part of the amendment would provide that a person does not commit an offence if, while at the terrorist training camp, he had no intention of furthering the commission or preparation of acts of terrorism or convention offences. As I indicated before, we consider that to be a significant loophole. It is not difficult to imagine that our courts might be faced with a steady stream of people claiming that they were simply observing, but not participating. Some might claim that they were just doing the catering or running the crèche, or myriad other excuses. What would certainly happen is that people would argue that they were at the terrorist training camp only to provide humanitarian assistance.
	We have to grapple with the mischief with which we are faced. It is a severe and acute mischief, which we must address. Therefore, our provisions need teeth. We cannot afford simply to allow them to be a toothless bulldog that cannot bite on any of the things that need to be changed. The Government's position is clear: no one has any legitimate reason to be at a place where they know that terrorists are being trained. It is as simple as that. I understand that there is a difference of view, but we believe that the provisions we are now putting in place are necessary to address the real threat. They should not impinge improperly upon ordinary journalistic licence; anyone behaving properly will be able to work quite comfortably within them.
	I hope that that has provided a modicum of reassurance in respect of journalists, but I absolutely anticipate that, if it has not, the noble Lord, Lord Goodhart, and others may wish to return to the matter.

Lord Goodhart: My Lords, I am grateful to the Minister for what has been a remarkably brilliant defence of a wholly and utterly indefensible position. The Government must think again.
	If the Minister quoted something from John Simpson's article—which suggests that she has read it—then I cannot quite refrain from saying something, which is unfair, because it is the Government's fault rather than hers. He says:
	"I have a lot of admiration for Baroness Scotland, but she clearly doesn't understand the first thing about the kind of journalism that she and her fellow ministers have now chosen to put in danger".
	I think that the Government must rethink their position on this. To help the Government to do so, let me make it absolutely clear that we will bring this back on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 15 [Maximum penalty for contravening notice relating to encrypted information]:

Lord Henley: moved Amendment No. 62A:
	Page 14, line 18, leave out from "substitute" to end of line 29 and insert "five years"

Lord Henley: My Lords, I hope to be brief, bearing in mind what I imagine are the strictures of the Chief Whip. This is a new issue, but I believe it to be important, and I hope that the Government will look seriously at it. The amendment would create a maximum penalty of five years for withholding an encryption key, for all offences.
	I must make it clear that the amendment is probing. The more I look at the amendment, the more I have fears that it might be defective. Having said that, as I said earlier, it is important and I hope that I can get a serious response from the Government.
	The purpose of the amendment is to question whether the difference in length of sentence between cases of national security and other cases is appropriate. This issue is particularly relevant to cases, for example, of serious fraud, predatory paedophiles and serious organised crime. With powerful encryption software becoming increasingly available and more widely used by criminals in cases such as these, it would seem logical that a criminal under investigation for such offences would prefer to face a two-year sentence than any of the likely charges resulting from the availability of that encrypted evidence to the police.
	The police have made it known that they find it increasingly hard to de-encrypt material that could contain evidence that would be vital to bring such charges. Indeed, there are growing numbers of cases where charges have not been brought due to an inability to de-encrypt material held on computer hard drives. Not only would such criminals not be punished to the full extent that they deserve, but the withholding of the encryption material would mean further victims and suspects could not be identified.
	Clause 15(1) states,
	"for 'two years' substitute 'the appropriate maximum term'",
	but Clause 15(2) states that in cases of "national security" there is a maximum of five years, and "in any other case" two years. It would be helpful if we could have a definition of precisely what the maximum sentence was going to be in many cases.
	Having said that, I hope that the Government see the problem here. There might be those who prefer to refuse to help the police with that de-encryption, because they reckon that a two-year sentence—the maximum available for such refusal—would be better than a sentence that they might get beyond that. I therefore ask the Government to give serious consideration to the issues raised by the amendment.
	Again, I apologise for not bringing this up earlier, because I think it is more a point for Committee, but it was only made available to us at a late stage. I think it is one on which the Government should give a serious response. I beg to move.

Lord Bassam of Brighton: My Lords, I am very grateful to the noble Lord, Lord Henley, for moving what he described as this late amendment—a bit of an afterthought—as it allows us to cast a watchful eye over Clause 15, which might not otherwise have attracted too much attention.
	The clause increases the penalty for failing to comply with a notice issued under Section 53 of the Regulation of Investigatory Powers Act 2000 in national security cases from two to five years. RIPA, at the Act is known, put in place a system of notices requiring those who hold the key to encrypted data relating to criminal investigation to hand it over. Failure to do so constitutes an offence which currently, as the noble Lord carefully explained, carries a maximum penalty of two years. Thus far, we have had a high degree of co-operation concerning the way in which the legislation works. As the noble Lord also described, the Bill increases that penalty to five years in cases where the interests of national security have led to the notice being issued. The amendment would apply that change to all offences.
	My first reaction is that the amendment is not really appropriate for a terrorism Bill, and I think that the noble Lord, Lord Henley, half-accepted that in his comments. The change in question is, by definition, concerned only with cases unrelated to terrorism and, for that reason, it probably would not be appropriate for your Lordships to accept the amendment. There may be some merit in the amendment well outside the confines of the Bill, but that is for consideration or debate in the future.
	The Bill is concerned largely with the UK's response to the very real and current threat of terrorism. At this stage, I argue that we need to be focused, considered, determined and disciplined before we start considering adding other, unrelated matters, however worthy they are, and the noble Lord gave a hint of some of the areas of concern.
	We brought forward Clause 15 because we recognise that national security cases are in a special and uniquely serious category and that the higher penalty can be justified for them. The argument for a higher penalty in cases not related to national security has not yet been made, although, as I acknowledged, it is something to be considered in the future. We can debate that another day. Were we to consider going along that path, clearly we would want to have discussions with the IT industry and consult it very carefully—perhaps the noble Lord has had some of those discussions.
	I understand why the noble Lord has moved the amendment but it is outside the scope of the debate that we have been having today, which concerns interests relating to national security. Although the amendment may be worth while in another context, I think that it is somewhat premature and I hope that, having heard that, the noble Lord will feel happy to withdraw it.

Lord Henley: My Lords, I am more than grateful to the noble Lord for that response. Obviously he is right that the Bill increases the penalty to a maximum of five years in national security cases, which is what the Bill is about. I still think that the amendment raises a serious point that, as the noble Lord said, goes beyond this Bill.
	I ask the noble Lord to do something for me, although I hope he will appreciate that there is no urgency because it does not relate to the Bill. Perhaps he or the Minister could write to me setting out the maximum penalties for some of the other offences that I mentioned—for example, paedophilia and so on, which has been in the news of late. Is the maximum always two years? If so, does that not create cases where, in relation to some offences, it is in the interests of some people to refuse to assist the police and to refuse to help with de-encryption, because they know that the maximum penalty that they are likely to receive is two years for refusing to help with de-encryption rather than something much worse further on?
	Having said that, I am grateful to the Government for the fact that on this occasion they have increased the penalty to five years in cases of national security. As the noble Lord put it, the new subsection (5B) of what I suppose will be the new Section 53 of the Regulation of Investigatory Powers Act spells out what a "national security case" means. I hope that the noble Lord has got that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 17 [Commission of offences abroad]:
	[Amendment No. 63 not moved.]

Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Equality Bill [HL]

Returned from the Commons with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
	House adjourned at twenty-one minutes past ten o'clock.
	Tuesday, 17 January 2006.